Vol. 76 Wednesday, No. 36 February 23, 2011

Pages 9939–10204

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 36

Wednesday, February 23, 2011

Agriculture Department Education Department See Animal and Plant Health Inspection Service NOTICES See Forest Service Fiscal Year 2010 Award Availability: See Rural Business–Cooperative Service Predominantly Black Institutions Competitive Grant See Rural Utilities Service Program, 10014–10018 Air Force Department NOTICES Energy Department Privacy Act; Systems of Records, 10010–10012 See Federal Energy Regulatory Commission PROPOSED RULES Alcohol, Tobacco, Firearms, and Explosives Bureau National Environmental Policy Act Implementing NOTICES Procedures, 9981–9982 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 10066–10067 Meetings: Environmental Management Site-Specific Advisory Animal and Plant Health Inspection Service Board, Idaho National Laboratory, 10018–10019 PROPOSED RULES Territorial and Import Regulations: Environmental Protection Agency South American Cactus Moth, 9978–9981 PROPOSED RULES Antitrust Division Improving EPA Regulations, 9988–9990 NOTICES Protection of Stratospheric Ozone: National Cooperative Research and Production Act of 1993: Leak Repair Requirements, 9987 Industrial Macromolecular Crystallography Association, NOTICES 10067 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Coast Guard EPA’s Light-Duty In-Use Vehicle and Engine Testing RULES Program, 10024–10025 Drawbridge Operation Regulations: National Volatile Organic Compound Emission Standards Chickasaw Creek, AL, 9968 for Consumer Products, 10025–10026 Reporting and Recordkeeping Requirements Under the Commerce Department WasteWise Program, 10022–10023 See Industry and Security Bureau Inventory of U.S. Greenhouse Gas Emissions and Sinks; See International Trade Administration 1990–2009, 10026 See National Oceanic and Atmospheric Administration Pesticide Products; Registration Applications, 10026–10028 Settlement Agreement for Recovery of Past Response Costs: Defense Department 10,000 Havana Street Site, Commerce City, Adams See Air Force Department County, CO, 10028 See Navy Department NOTICES Meetings: Federal Aviation Administration Reserve Forces Policy Board, 10008 RULES Privacy Act; Systems of Records, 10008–10010 Airworthiness Directives: Thielert Aircraft Engines GmbH Models TAE 125–02–99 Department of Transportation and TAE 125–02–114 Reciprocating Engines, 9963– See Pipeline and Hazardous Materials Safety 9965 Administration Amendments of Class E Airspace and Revocations of Class E Airspace: Drug Enforcement Administration Easton, MD, 9965–9966 NOTICES Amendments of Class E Airspace: Importers of Controlled Substances; Applications: Charleston, WV, 9966 Sigma Aldrich Manufacturing LLC, 10067–10068 Henderson, KY, 9967 Importers of Controlled Substances; Registrations: Removals and Amendments of Class E Airspace: Wildlife Laboratories, Fort Collins, CO, 10068 Oxford, CT, 9967–9968 Manufacturers of Controlled Substances; Applications: PROPOSED RULES Johnson Matthey Pharmaceutical Materials Inc., Airworthiness Directives: Pharmaceutical Service, Devens, MA, 10068 B/E Aerospace, Continuous Flow Passenger Oxygen Mask Manufacturers of Controlled Substances; Registrations: Assembly, 9984–9987 Aldrich Chemical Company, Inc., Miamisburg, OH, 10069 Bombardier, Inc. Model DHC–8–400 Series Airplanes, Chemic Laboratories, Inc., Canton, MA, 10069 9982–9984 Halo Pharmaceutical Inc., Whippany, NJ, 10070 NOTICES Johnson Matthey Inc., Custom Pharmaceuticals Membership in the National Parks Overflights Advisory Department, West Deptford, NJ, 10069–10070 Group Aviation Rulemaking Committee, 10085–10086

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Federal Communications Commission Meetings: PROPOSED RULES President’s Management Advisory Board, 10032–10033 Television Broadcasting Services: Kalispell, MT, 9991 Health and Human Services Department NOTICES See National Institutes of Health Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 10029–10030 Enforcement of Federal Health Care Provider Conscience Protection Laws, 9968–9977 Federal Deposit Insurance Corporation NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10033–10038 Submissions, and Approvals, 10030–10031 Determinations: Demonstration Needle Exchange Program Would be Federal Emergency Management Agency Effective in Reducing Drug Abuse and Risk of AIDS NOTICES Infection Among Intravenous Drug Users, 10038 Emergency Declarations: Oklahoma; Amendment No. 1, 10043 Homeland Security Department Major Disaster and Related Determinations: See Coast Guard Utah, 10043–10044 See Federal Emergency Management Agency Major Disaster Declarations: New Jersey; Amendment No. 1, 10044 Housing and Urban Development Department RULES Federal Energy Regulatory Commission Public Housing Evaluation and Oversight: NOTICES Public Housing Assessment System and Determining and Combined Filings, 10019–10021 Remedying Substantial Default, 10136–10163 NOTICES Federal Railroad Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Applications for Approval of Discontinuance or eLogic Model Grant Performance Report Standard, Modification of a Railroad Signal System, 10086 10045–10047 Petitions for Waivers of Compliance: Public Housing Assessment System Appeals, Technical CSX Transportation, Inc., 10087 Reviews and Database Adjustments, 10044–10045 Whitewater Valley Railroad, 10086–10087 Changes to the Public Housing Assessment System: Capital Fund Scoring, 10053–10054 Federal Retirement Thrift Investment Board Financial Condition Scoring, 10047–10050 NOTICES Management Operations Scoring, 10050–10053 Meetings; Sunshine Act, 10031 Funding Availability for Fiscal Year 2010 Transformation Initiative: Fiscal Service Natural Experiments Program; Correction, 10054–10055 RULES Public Housing Assessment System: Garnishment of Accounts Containing Federal Benefit Physical Condition Scoring, 10055–10062 Payments, 9939–9962 Single Family Loan Sales, 10062–10063 Fish and Wildlife Service Industry and Security Bureau RULES NOTICES Endangered and Threatened Wildlife and Plants: Meetings: 12-Month Finding on a Petition to List Astragalus Emerging Technology and Research Advisory Committee, hamiltonii, Penstemon flowersii, Eriogonum 10004–10005 soredium, Lepidium ostleri, and Trifolium friscanum President’s Export Council Subcommittee On Export as Endangered or Threatened, 10166–10203 Administration, 10004 PROPOSED RULES Reporting for Calendar Year 2010 on Offsets Agreements Endangered and Threatened Wildlife and Plants: Related to Sales of Defense Articles; etc., 10005 12-Month Finding on a Petition to List Thorne’s Hairstreak Butterfly as Endangered, 9991–10003 Interior Department NOTICES See Fish and Wildlife Service Endangered and Threatened Wildlife and Plants; Permits, See Land Management Bureau 10063–10064 International Trade Administration Forest Service NOTICES NOTICES Requests for NAFTA Panel Review, 10005–10006 Environmental Impact Statements; Availability, etc.: Big Thorne Project, Thorne Bay Ranger District, AK, Justice Department 10004 See Alcohol, Tobacco, Firearms, and Explosives Bureau See Antitrust Division General Services Administration See Drug Enforcement Administration NOTICES See Parole Commission Environmental Assessments; Availability, etc.: NOTICES Renovations of the Charles F. Prevedel Federal Building, Agency Information Collection Activities; Proposals, Overland, MO, 10031–10032 Submissions, and Approvals, 10064–10066

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Labor Department Public Debt Bureau See Workers Compensation Programs Office See Fiscal Service

Land Management Bureau Railroad Retirement Board NOTICES RULES Meetings: Garnishment of Accounts Containing Federal Benefit Central California Resource Advisory Council, 10064 Payments, 9939–9962

National Institutes of Health Rural Business–Cooperative Service NOTICES RULES Meetings: Value-Added Producer Grant Program, 10090–10134 Center for Scientific Review, 10039–10042 National Eye Institute, 10041 Rural Utilities Service National Institute of Diabetes and Digestive and Kidney RULES Diseases, 10039, 10042 Value-Added Producer Grant Program, 10090–10134 National Institute of Environmental Health Sciences, 10040–10041 Securities and Exchange Commission National Institute Of General Medical Sciences, 10038– NOTICES 10039, 10043 Meetings; Sunshine Act, 10073 National Institute Of Neurological Disorders And Stroke, Self-Regulatory Organizations; Proposed Rule Changes: 10038 C2 Options Exchange, Inc., 10076–10078 National Institute of Neurological Disorders and Stroke, Chicago Board Options Exchange, Incorporated, 10078– 10040 10081 National Institute on Deafness and Other Communication NYSE Arca, Inc., 10073–10076 Disorders, 10041 Small Business Administration National Oceanic and Atmospheric Administration RULES NOTICES Surety Bond Guarantee Program: Agency Information Collection Activities; Proposals, Timber Sales, 9962–9963 NOTICES Submissions, and Approvals: Disaster Declarations: Economic Surveys of American Samoa, Guam, and the New Jersey; Amendment 1, 10081–10082 Commonwealth of the Northern Mariana Islands Utah, 10081 Small Boat-based Fisheries, 10006 State Trade and Export Promotion (STEP) Grant Program, Meetings: 10082 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review, 10007 Social Security Administration North Pacific Fishery Management Council, 10006–10008 RULES Garnishment of Accounts Containing Federal Benefit Navy Department Payments, 9939–9962 NOTICES Environmental Impact Statements; Availability, etc.: State Department Disposal and Reuse of Hunters Point Naval Shipyard, San NOTICES Francisco, CA, 10012–10014 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nuclear Regulatory Commission J–1 Visa Waiver Recommendation Application, 10084 NOTICES Supplemental Nonimmigrant Visa Application, 10082– Proposed Generic Communications: 10083 Adequacy of Station Electric Distribution System U.S. National Commission for UNESCO Laura W. Bush Voltages, 10072–10073 Traveling Fellowship, 10083–10084

Overseas Private Investment Corporation Thrift Supervision Office NOTICES NOTICES Meetings; Sunshine Act, 10073 Conversion Applications; Approvals: Sunshine Financial, Inc., Tallahassee, FL, 10088 Parole Commission NOTICES Transportation Department Meetings; Sunshine Act, 10070 See Federal Aviation Administration Record of Vote of Meeting Closure, 10070 See Federal Railroad Administration See Pipeline and Hazardous Materials Safety Personnel Management Office Administration RULES NOTICES Garnishment of Accounts Containing Federal Benefit Applications for Certificates of Public Convenience and Payments, 9939–9962 Necessity and Foreign Air Carrier Permits, 10084– 10085 Pipeline and Hazardous Materials Safety Administration NOTICES Treasury Department Applications for Modifications of Special Permits, 10088 See Fiscal Service

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See Thrift Supervision Office Part III Housing and Urban Development Department, 10136–10163 Veterans Affairs Department RULES Garnishment of Accounts Containing Federal Benefit Part IV Payments, 9939–9962 Interior Department, Fish and Wildlife Service, 10166– 10203 Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 10070–10072 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, Separate Parts In This Issue and notice of recently enacted public laws. Part II To subscribe to the Federal Register Table of Contents Agriculture Department, Rural Business–Cooperative LISTSERV electronic mailing list, go to http:// Service, 10090–10134 listserv.access.gpo.gov and select Online mailing list Agriculture Department, Rural Utilities Service, 10090– archives, FEDREGTOC-L, Join or leave the list (or change 10134 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.

5 CFR 831...... 9939 841...... 9939 7 CFR 4284...... 10090 Proposed Rules: 318...... 9978 319...... 9978 10 CFR Proposed Rules: 1021...... 9981 13 CFR 115...... 9962 14 CFR 39...... 9963 71 (4 documents) ...9965, 9966, 9967 Proposed Rules: 39 (2 documents) ....9982, 9984 20 CFR 350...... 9939 404...... 9939 416...... 9939 24 CFR 901...... 10136 902...... 10136 907...... 10136 31 CFR 212...... 9939 33 CFR 117...... 9968 38 CFR 1...... 9939 40 CFR Proposed Rules: Ch. I ...... 9988 Ch. II ...... 9988 Ch. III ...... 9988 Ch. IV...... 9988 Ch. V...... 9988 Ch. VI...... 9988 Ch. VII...... 9988 82...... 9987 45 CFR 88...... 9968 47 CFR Proposed Rules: 73...... 9991 50 CFR 17...... 10166 Proposed Rules: 17...... 9991

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Rules and Regulations Federal Register Vol. 76, No. 36

Wednesday, February 23, 2011

This section of the FEDERAL REGISTER account holder who receives certain and subject to public disclosure. Do not contains regulatory documents having general types of Federal benefit payments by include any information in your applicability and legal effect, most of which direct deposit. The rule requires comment or supporting materials that are keyed to and codified in the Code of financial institutions that receive such a you consider confidential or Federal Regulations, which is published under garnishment order to determine the sum inappropriate for public disclosure. 50 titles pursuant to 44 U.S.C. 1510. of such Federal benefit payments FOR FURTHER INFORMATION CONTACT: Gary The Code of Federal Regulations is sold by deposited to the account during a two Grippo, Deputy Assistant Secretary, the Superintendent of Documents. Prices of month period, and to ensure that the Fiscal Operations and Policy, U.S. new books are listed in the first FEDERAL account holder has access to an amount Department of the Treasury, at (202) REGISTER issue of each week. equal to that sum or to the current 622–6222. balance of the account, whichever is SUPPLEMENTARY INFORMATION: lower. OFFICE OF PERSONNEL I. Background and Summary of DATES: This interim final rule is Proposed Rule MANAGEMENT effective May 1, 2011. Comments must 5 CFR Part 831, 841 be received on or before May 24, 2011. Background ADDRESSES: The Agencies invite On April 19, 2010, the Agencies RIN 3206–AM17 comments on all aspects of this interim published a proposed rule to address final rule. In accordance with the U.S. RAILROAD RETIREMENT BOARD concerns associated with the government’s eRulemaking Initiative, garnishment of certain exempt Federal the Agencies publish rulemaking 20 CFR Part 350 benefit payments, including Social information on http:// Security benefits, Supplemental RIN 3220–AB63 www.regulations.gov. Regulations.gov Security Income (SSI) benefits, VA offers the public the ability to comment benefits, Federal Railroad retirement SOCIAL SECURITY ADMINISTRATION on, search, and view publicly available benefits, Federal Railroad rulemaking materials, including unemployment and sickness benefits, 20 CFR Parts 404, 416 comments received on rules. Civil Service Retirement System The Agencies will jointly review all of RIN 0960–AH18 benefits and Federal Employee the comments submitted. Comments on Retirement System benefits. See 75 FR DEPARTMENT OF THE TREASURY this rule must only be submitted using 20299. The Agencies received 586 the following methods: comments on the proposed rule, • Federal eRulemaking Portal: http:// Fiscal Service including comments from individuals, www.regulations.gov. Follow the consumer advocacy organizations, legal instructions on the Web site for 31 CFR Part 212 services organizations, financial submitting comments. institutions and their trade associations, • Mail: Gary Grippo, Deputy RIN 1505–AC20 State attorneys general and State child Assistant Secretary, Fiscal Operations support enforcement agencies. As DEPARTMENT OF VETERANS and Policy, U.S. Department of the described in Parts II and III of this AFFAIRS Treasury, 1500 Pennsylvania Avenue, SUPPLEMENTARY INFORMATION, the NW., Room 2112, Washington, DC interim final rule adopts the proposal 38 CFR Part 1 20220. with a number of changes. Instructions: All submissions received Social Security benefits, SSI benefits, RIN 2900–AN67 must include the Agencies’ names and VA benefits, Federal Railroad retirement RIN numbers 3206–AM17, 3220–AB63, Garnishment of Accounts Containing benefits, Federal Railroad 0960–AH18, 1505–AC20, and 2900– Federal Benefit Payments unemployment and sickness benefits, AN67 for this rulemaking. In general, Civil Service Retirement System comments received will be published on AGENCY: Department of the Treasury, benefits and Federal Employee Regulations.gov without change, Fiscal Service (Treasury); Social Retirement System benefits are including any business or personal Security Administration (SSA); protected under Federal law from information provided. Treasury will Department of Veterans Affairs (VA); garnishment and the claims of judgment also make such comments available for Railroad Retirement Board (RRB); Office creditors.1 This legal protection public inspection and copying in of Personnel Management (OPM). continues after benefits are deposited to Treasury’s Library, Room 1428, ACTION: Interim final rule with request an individual’s account at a financial Department of the Treasury, 1500 for public comment. institution. Nevertheless, creditors and Pennsylvania Avenue, NW., debt collectors are often able to obtain SUMMARY: Washington, DC 20220, on official Treasury, SSA, VA, RRB and court orders garnishing funds in an business days between the hours of OPM (Agencies) are issuing an interim individual’s account. To comply with 10 a.m. and 5 p.m. Eastern Time. You final rule to implement statutory court garnishment orders and preserve can make an appointment to inspect restrictions on the garnishment of funds subject to the orders, financial Federal benefit payments. The rule comments by telephoning (202) 622– establishes procedures that financial 0990. Comments received, including 1 See 42 U.S.C. 407(a); 42 U.S.C. 1383(d)(1); 38 institutions must follow when they attachments and other supporting U.S.C. 5301(a); 45 U.S.C. 231m(a); 45 U.S.C. 352(e); receive a garnishment order against an materials, are part of the public record 5 U.S.C. 8346(a) and 5 U.S.C. 8470.

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institutions often place a temporary order, including whether the order seeks Scope (Proposed § 212.2) freeze on an account upon receipt of a to collect child support or alimony Some commenters, primarily garnishment order and remit the obligations. individuals, noted that the proposed garnished funds to the court or creditor. II. Comments and Analysis rule did not include within its scope Although State laws provide account various Federal payments that are owners with an opportunity to assert In general, individuals, consumer groups, legal aid organizations and State protected from garnishment by statute. any rights, exemptions, and challenges These commenters urged that the final to the garnishment order, including the attorneys general were supportive of the proposed rule and urged that it be rule cover all such payments, which exemptions under applicable Federal include military retirement payments, benefits laws, the freezing of funds finalized, subject to a number of as well as certain payments made by the during the time it takes to file and changes. Banks and banking industry Army, Navy, Air Force, Marines, Coast adjudicate such a claim can cause trade groups generally acknowledged Guard, National Oceanographic and significant hardship for account owners. the need for the rule, but were critical of various aspects of the rule and Atmospheric Administration and the Proposed Rule commented that a number of changes Public Health Service. To address the foregoing problems, should be made to the proposed rule in The Agencies are aware that some the Agencies published for comment a order to facilitate banks’ ability to other Federal payments are also proposed rule to require financial comply with the requirements of the protected from garnishment and have institutions to follow certain procedures rule. Many credit unions and several structured the rule so as to create a upon receipt of a garnishment order, as credit union trade associations opposed framework in which such payments can follows: Upon receipt of a garnishment the proposed rule, and objected to be included in the future. Federal order, a financial institution would first various provisions as time-intensive and agencies that issue such payments determine if the United States is the burdensome, particularly for smaller could, through a public notice-and- plaintiff that obtained the order. If not, credit unions. Several State child comment rulemaking process, amend the financial institution would review support enforcement agencies their regulations to provide that their the account history during the 60-day commented that the proposed rule exempt payments are covered by this period that precedes the receipt of the would harm custodial parents and rule. The Agencies would then issue a garnishment order. If, during this children receiving child support, and rulemaking to include those payments ‘‘lookback period,’’ one or more exempt opposed the adoption of the rule unless within the scope of this rule. payments were directly deposited to the protection from garnishment for child Definition of ‘‘Account’’ (Proposed account, the financial institution would support obligations is removed. § 212.3) allow the account holder to have access Effective Date to an amount equal to the lesser of the Some banks and bank trade groups sum of such exempt payments or the Many banks and banking industry expressed concerns with the broad balance of the account on the date of the associations commented that the rule definition of ‘‘account’’ in the proposed account review (the ‘‘protected should not become effective until one rule, which defined an ‘‘account’’ as ‘‘an amount’’). The financial institution year following the implementation of account at a financial institution to would be required to notify the account the garnishment exemption identifiers which benefit payments can be holder of the protections from that the Treasury will encode in delivered by direct deposit.’’ Banks garnishment that apply to exempt funds. Automated Clearinghouse (ACH) Batch observed that this definition does not The notice, which would have to Header Records. The commenters stated distinguish between personal and include certain information, would be that systems programming and testing business accounts, both of which could required to be sent within two business would be required to automate the receive direct deposits of Federal days of the completion of the account detection of the identifiers. The benefits. Banks indicated that the review. Financial institutions could Agencies are not delaying the effective definition raises operational issues, choose to use a model notice contained date of the rule until a year after because if an account, such as a in the rule in order to be deemed to be garnishment exemption identifiers have business account, is not held in the in compliance with the notice content been included in the ACH Records. name of the personal customer or debtor requirements. Financial institutions that Although the Agencies understand that it is not likely to be found during the complied with the proposed rule’s many financial institutions will make search of accounts. They therefore requirements would be protected from systems changes to help automate recommended that the definition of the liability. compliance, the Agencies do not term ‘‘account’’ should be expressly For an account containing a protected consider such changes to be necessary limited to ‘‘a personal consumer account amount, the financial institution would for compliance and do not believe they at a financial institution to which be permitted to collect a garnishment should be established as a pre-condition benefit payments can be delivered by fee only against funds in the account in to protecting Federal benefits exempt direct deposit,’’ a definition that would excess of the protected amount on the from garnishment by law. However, to more closely align with bank record date of the account review, and only if provide financial institutions with keeping and research systems. the financial institution customarily additional time for staff training and The Agencies are not limiting the charges its other account holders a procedural changes, as well as for definition of account in the rule to an garnishment fee of the same nature and potential systems changes, we are account held for personal, family or in the same amount. In addition, for delaying the effective date until May 1, household purposes. Although the accounts containing a protected amount, 2011. Before this date, the Treasury will delivery of a benefit payment to a a financial institution would not be include the garnishment exemption business account may be relatively permitted to charge or collect a identifiers in benefit payments and will uncommon, the Agencies see no reason garnishment fee after the date of account provide additional information on the why the protection afforded to a benefit review. The proposed rule would not identifiers in an update to the Green payment should be contingent on its have required financial institutions to Book, A Guide to Federal Government delivery to a personal account, as determine the purpose of a garnishment ACH Payments and Collections. opposed to a business account. The

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Agencies have refined the definition of and 6—which would make the identifier payees have been addressed by changes account to include any account, easier to recognize and would reduce to the definition of ‘‘benefit payment’’ whether classified as a master account the potential for false positives where a and the addition of a new defined term, or a sub account, to which an electronic non-Federal agency company name ‘‘account holder.’’ The reference to payment may be directly routed. This begins with a single letter ‘‘X.’’ representative payees has been deleted clarifies, for example, how the One consumer advocacy organization from the definition of ‘‘benefit definition would apply to credit union urged that deposits made by check be payment,’’ and the new term ‘‘account accounting structures where there is a protected under the same procedures holder’’ is defined to mean ‘‘a natural main member number under which applicable to a ‘‘benefit payment,’’ person against whom a garnishment there are individual transactional which was defined in the proposed rule order is issued and whose name appears accounts. It also makes the definition to include only a directly deposited in a financial institutions records as more consistent with the provisions of payment. The organization argued that a direct or beneficial owner of an the rule that require financial financial institution that has a particular account.’’ These changes clarify that the institutions to conduct a separate type of account designated for recipients protections in the rule apply whenever account review for each account that of exempt funds or that notes the a person’s name appears in the financial may receive a benefit payment. exempt source at the time of the deposit institution’s records with an ownership should be encouraged not to freeze interest in an account, either as the Definition of ‘‘Benefit Payment’’ and Use those exempt funds and should be directly named owner or as the of a Garnishment Exemption Identifier provided the safe harbor protections beneficial owner on an individual or (Proposed § 212.3) under this rule. organizational representative payee Some banks and bank trade groups The Agencies are revising the account, or on another type of fiduciary requested that the definition of ‘‘benefit definition of ‘‘benefit payment,’’ as account. payment’’ be revised to avoid confusion recommended by the commenters, to The scope of the interim final rule in circumstances where an individual’s make it clear that a payment constitutes does not extend to check payments. benefit payments have been directly a ‘‘benefit payment’’ only if the ACH Checks do not raise the same concerns deposited to an account held by a Batch Header Record contains a raised by the direct deposit of exempt representative payee. These commenters specified unique garnishment funds because a benefit recipient who suggested that the term benefit payment exemption identifier. The rule provides receives a Treasury check representing be defined to mean ‘‘a direct deposit that a payment constitutes a benefit exempt funds can choose to cash the payment made by a benefit agency to a payment if it contains the characters check rather than to deposit the check natural person, or to a representative ‘‘XX’’ encoded in positions 54 and 55 of and take on the risk that the funds will payee receiving payments on behalf of the ‘‘Company Entry Description’’ Field be garnished. In addition, financial a natural person ‘whose name appears of the Batch Header Record of the direct institutions cannot readily identify in the bank’s records as account owner,’ deposit entry. While the proposed rule whether a Treasury check that was under a federal program listed in indicated that the garnishment deposited to an account represents § 212.2(b).’’ Other banks specifically exemption identifier should be in the exempt funds. Whereas ACH record urged the Agencies to revise the ‘‘Company Name’’ Field of the Batch formats and systems facilitate both the definition of benefit payment in Header Record, the interim final rule encoding and recognition of a proposed § 212.3 to exclude payments provides that the identifier will be in garnishment exemption identifier with made to organizational representative the ‘‘Company Entry Description’’ Field directly deposited payments, the payees. to ensure that the identifier can be used systems and processes used to produce Many banks and payment with all types of ACH transactions. For and receive Treasury checks do not organizations urged that the definition example, placing the identifier in the facilitate an equivalent approach that of ‘‘benefit payment’’ be revised to make ‘‘Company Name’’ Field would preclude would make it possible for financial it clear that a payment constitutes a its use with the International ACH institutions to determine whether a ‘‘benefit payment’’ only if the ACH Batch Transaction (IAT) Standard Entry Class Treasury check represents an exempt Header record contains the unique code, which does not contain the payment. Even if the Agencies could garnishment exemption identifiers ‘‘Company Name’’ Field. As with the develop a feasible way for an identifier discussed in the proposed rule. These ‘‘Company Name’’ Field, the ‘‘Company to be included on a Treasury check, a commenters stated that an institution Entry Description’’ Field is typically financial institution would need to should be able to rely on these unique captured and included in an account manually retrieve images or copies of identifiers, and that this ability be statement, allowing both the financial recent items to find Treasury checks and codified in the regulation itself, by institution and the account holder to visually inspect them. The fact that the amending the definition of ‘‘benefit readily identify Federal benefit rule does not address Treasury checks payment’’ and/or the provisions in payments exempt from garnishment. in no way affects an individual’s right § 212.5(a) regarding the account review With the garnishment exemption to assert or receive an exemption from to be performed by the financial identifier in the ‘‘Company Entry garnishment by following the institution. With respect to the proposal Description,’’ a Social Security payment procedures specified under the to encode an ‘‘X’’ in position 20 of the that currently contains ‘‘SOC SEC’’ in applicable law. ‘‘Company Name’’ Field of the Batch this field will now be encoded as Header Record for each exempt benefit ‘‘XXSOC SEC.’’ A Federal retirement Definition of ‘‘Garnishment’’ and ACH payment, many financial payment currently encoded as ‘‘FED ‘‘Garnishment Order’’ (Proposed § 212.3) institutions noted that encoding an ‘‘X’’ ANNUT’’ will now appear as ‘‘XXFED Several commenters requested in position 20 can result in the ‘‘X’’ not ANN.’’ All benefit payments subject to clarification on whether pre-judgment being readily readable because it is the the interim final rule will be similarly garnishments and similar extraordinary last character position of that field. They encoded. The encoding of payments legal process are excluded from the recommended that, instead, an ‘‘X’’ be will be in place by May 1, 2011. scope of the definition of garnishment encoded in the first two positions of the The comments regarding benefit and the requirements of the rule, stating ‘‘Company Name’’ Field—positions 5 payments delivered to representative that the policy considerations behind

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emergency and extraordinary legal to shield 60 days of payments from Definition of ‘‘Protected Amount’’ process are different from those relevant garnishment, and that 30 days (Proposed § 212.3) to civil debt collection. One commenter, protection would be more appropriate. One bank questioned whether the however, expressed concern that the Some banks and credit unions stated ‘‘balance on the day of the account definition of garnishment order in the that due to the way account history is review’’ used in defining the protected proposed rule was too narrow and that archived, they could not easily comply amount refers to the beginning balance it should be revised to include: Any with a 60 day lookback requirement and or ending balance on that day, and order to freeze an account in requested that the lookback period be recommended that the rule be clarified anticipation of a further order to enforce limited to 45 days or one month. Most by stating that financial institutions are a money judgment; any legal process banks commented that they could to look at the beginning account issued as part of a civil proceeding but comply with a 60 day lookback period, balance. Another commenter asked prior to entry of a money judgment; and but some banks and bank trade groups whether items presented for payment any order of a State or local government commented that a two month lookback against the debtor’s account that arrive or agency to freeze or pay funds in period would be easier to administer the same day as the garnishment are connection with an obligation owed to and less prone to potential errors. Using included in the protected amount and or collected by the State or local this two month definition, the lookback asked that the rule provide explicit government or agency. The definition of ‘‘garnish or period would be measured not by guidance on whether the protected garnishment’’ has been revised to make counting back 60 days, but rather by amount is calculated based on the it clear that pre-judgment garnishments measuring a date-to-date period from a account balance prior to or after posting are included within the definition. The start date, for example September 15, of the debits or credits received on the proposed definition, which was and ending with the corresponding date same day as the garnishment. ‘‘execution, levy, attachment, of the month two months earlier, in this Some commenters urged the Agencies garnishment, or other legal process to example July 15. In light of the to define the protected amount as an enforce a money judgment,’’ has been comments, the Agencies have revised aggregate across accounts, rather than revised by deleting the phrase ‘‘to the lookback period. The interim final applying a protected amount to each enforce a money judgment.’’ With the rule defines the lookback period as a account separately. Under this proposed deletion, the definition used in the rule two month period beginning on the date definition, the protected amount would is identical to the definition used in preceding the date of the account be the lesser of (i) the sum of all benefit some of the Agencies anti-garnishment review. The two month lookback period payments deposited ‘‘into all accounts statutes. will ensure that in almost all cases, the owned by the account holder’’ during protected amount will include two the lookback period or (ii) the ‘‘aggregate Definition of Lookback Period (Proposed benefit payments, as urged by balance in these accounts’’ on the date § 212.3) consumers and consumer advocacy of account review. Many comments were received groups. The Agencies conducted Some commenters, including regarding the length of the lookback research on Federal benefit payments financial institutions, trade groups, and period. Individual benefit recipients and covered by this rule over a 7 year period consumer advocacy groups, stated that consumer groups generally commented that showed that a 60 day lookback protecting a flat dollar amount would that the 60 day lookback period should period will capture at least two promote certainty, clarity and be extended, with most commenters payments in 95% of cases, whereas a administrative simplicity. suggesting a 65 day period in order to two month lookback period measured The interim final rule refers ensure that two months worth of date-to-date will capture at least two specifically to beginning and ending payments are protected in all cases. payments in 99% of cases. In addition, balances in the definition of protected Several consumer groups and the two-month lookback period amount. Under the revised definition, individuals commented that the rule addresses financial institutions’ request items presented for payment against the would not protect funds in an account for a lookback period that is easier to account that arrive on the same day as that originated from a large back- administer and less error-prone. the date of account review would not be payment of benefits, as could occur if a included in the protected amount. The back-payment were credited to an Moreover, in the proposed rule the Agencies are not defining a flat dollar account more than 60 days prior to the lookback period began on the date amount as the protected amount receipt of a garnishment order. One preceding the date on which a financial because the use of a flat dollar amount consumer advocacy organization urged institution is served a garnishment will invariably result in underprotecting that the rule require banks to have an order. In the interim final rule, the some individuals and overprotecting informal process in place to evaluate a lookback period begins on the date others. claim by the debtor that the funds in preceding the date of account review. The Agencies are not defining the excess of the two months are also This change reflects that the interim protected amount based on the aggregate protected under Federal garnishment final rule allows two business days, and deposits and balances across all rules in cases where a judgment creditor potentially additional time, to perform accounts, for several reasons. First, the seeks more than two months of value of the account review after receipt of a Agencies believe the protection should the debtor’s protected income. The garnishment order. By linking the be specific to the account(s) to which purpose of this informal process would lookback period to the date of account benefit payments are directly deposited, be to protect beneficiaries with more review and not the date an order is ensuring that a direct, verifiable than two months worth of Federal served, the rule ensures that the account connection exists between the protected benefits in their financial institution review will better reflect the current amount and the evidence of an exempt and alleviate the burden of forcing them state of an account and capture the most Federal benefit payment. Second, to go to court to protect exempt funds. recent benefit payments that may be defining the protected amount as an Credit unions generally commented deposited on or after the day an order aggregate across all accounts assumes that, as creditors and potential is served but before the account review that amounts transferred between garnishors, they felt it was inappropriate is performed. accounts must be exempt. As discussed

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more fully in this preamble under the that the initial examination is handled obtained by the United States are heading ‘‘Protection for funds quickly and accurately. excluded. transferred to another account (§ 212.5),’’ Financial institutions also requested In order to allow financial institutions however, the Agencies do not believe confirmation that non-garnishment to quickly identify whether a the account review and the forms of legal seizure issued by the garnishment order was obtained by the establishment of the protected amount United States are also excluded from the United States, the rule requires that can apply to funds transferred from one review/protection process. They such orders have attached or included account to another. Third, an aggregated explained that the term ‘‘garnishment’’ with them a standard Notice of Right to protected amount would introduce typically encompasses the orders used Garnish Federal Benefits. additional accounting complexities in in the judicial collection of a civil Child Support Orders (Proposed § 212.4) different deposit and balance scenarios. money judgment, and indicated that For example, if the sum of benefit they handle many non-garnishment Several State child support payments is less than the combined legal orders that freeze customer funds enforcement agencies argued that balance across accounts, but more than on a continuing basis, such as garnishment orders for purposes of child support should be treated in the balance in any individual account, temporary restraining orders, § 212.4 in the same way as orders the protected amount could cover only injunctions and seizure warrants. They obtained by the United States. These partial amounts in one or more accounts recommended that all legal process agencies expressed concerns regarding and would require a rule for allocating issued by the United States be treated the legality and equity of protecting the protected amount across accounts. the same way, and be specifically benefit payments from garnishment for The interim final rule retains the excluded from the requirements of child support. State child support subsection in the proposed rule that proposed §§ 212.5 and 212.6. agencies pointed out that Federal law makes clear that a protected amount One commenter suggested that the must be established separately for each and administrative regulation not only rule be modified to require a financial allow but encourage child support account held in the name of the account institution receiving a garnishment holder. enforcement programs to take order from the Federal government to enforcement action against most funds U.S. Garnishment Orders (Proposed screen the account for any of the types identified as ‘‘protected’’ in the proposed § 212.4) of benefits that are not exempt from rule in order to satisfy court ordered Many commenters objected to collection by the Federal government. support requirements. They noted that excluding garnishment orders obtained This commenter recommended the an obligation to support children and by the United States from the creation and use of a separate code for family is not characteristically similar to protections of the rule. Legal aid those Federal benefits that are not other debts and that child support organizations, consumer advocacy exempt from collection when the obligations are not treated like other groups and individuals stated that these creditor is the Federal government, and debts in contexts of many Federal orders should not be excluded because that financial institutions be required to statutes, such as the Bankruptcy Code, doing so contradicts the goal of ensuring screen for this factor. the Fair Debt Collections Practices Act, that beneficiaries retain their exempt The Agencies are retaining in the rule and the Consumer Credit Protection Act. benefits, and that no specific creditor an exclusion for garnishment orders State child support enforcement should be treated differently from obtained by the United States. There are agencies also pointed out that while others. Financial institutions stated that several Federal statutes that expressly SSA benefit programs participate with the requirement in the proposed rule to permit the United States to garnish the Federal Office of Child Support treat garnishment orders where the Federal benefit payments. See 18 U.S.C. Enforcement (OCSE) in data matching United States is the garnishor differently 3613(a), 26 U.S.C. 6334(c), 31 U.S.C. programs that allow child support from other garnishment orders adds an 3716(c)(3)(A)(i), and 42 U.S.C. 1320a– programs to collect child support from undesirable level of complexity to the 8(e)(1)(C). Absent a carve-out for all Social Security Title II benefits, this is garnishment process and raises garnishment orders obtained by the not the case for VA programs. There is compliance concerns. Some financial United States, financial institutions no proactive matching that provides institutions expressed concerns that it would face uncertainty and the burden viable useful information on VA may be difficult to determine whether of determining on a case-by-case basis benefits, and there is not an effective the United States is the creditor is some whether a particular order obtained by program that efficiently allows for cases. the United States was subject to the rule collection of child support from any VA Financial institutions and financial or not. Moreover, garnishments orders benefits. institution trade groups requested that if obtained by the United States are Child support enforcement agencies the requirement to exclude orders already governed by a comprehensive argued that the proposed rule would obtained by the United States is Federal statute, the Federal Debt diminish their powers in direct retained, the final rule require that each Collection Procedures Act (FDCPA), contravention of the rights and order issued by the United States state 28 U.S.C. 3001 et seq., which establishes responsibilities assigned to the child on its face—preferably on the first a uniform framework with exclusive support enforcement program by page—that it is exempt from the civil procedures for the collection of all Federal law and regulation. In view of requirements of 31 CFR 212.5 and 212.6. judgments due the United States, these concerns, commenters requested Financial institutions argued that such a including cases where the United States that a provision be added to the rule to statement would provide certainty and is prohibited from garnishing Federal require a financial institution to make a allow for rapid decision-making and benefit payments as well as cases where determination if an order was issued by handling by the financial institution. it is expressly allowed to garnish such a Child Support program under Title Alternatively, financial institutions payments. While the rule is needed to IV–D of the Social Security Act, in the requested that each order issued by the address the problems of garnishing same way that financial institutions are United States be accompanied by a exempt funds, it would both overlap required to make as to whether a Notice of Garnishment as set forth in and conflict with the framework of the garnishment order was obtained by the Appendix B of the rule so as to ensure FDCPA unless garnishment orders United States. These agencies argued

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that an exemption for child support Some commenters, primarily credit Protection for Funds Transferred to orders would be consistent with the unions, asked that the deadline be Another Account (Proposed § 212.5) clear Congressional intent to require all increased to a period ranging from two Financial institutions broadly persons to support their families. to five business days following receipt supported the proposal to exclude funds Commenters argued that such an of the order. Other commenters, transferred to another account from the exemption would not be burdensome primarily banks, asked that the rule’s protection, and requested that for financial institutions to comply with obligation to commence review begin § 212.5 explicitly state that transferred because child support garnishment only after the institution receives the funds are not subject to protection. orders are distinctive and easily information necessary to identify the One consumer advocacy organization identifiable by financial institutions. property of the benefit recipient. Some commented that exempt money that is The interim final rule contains an commenters asked for a combination: transferred from one account to another exclusion for garnishment orders issued the longer of two business days or the should be protected under the rule. This by a State child support enforcement receipt of the information necessary to organization commented that to agency that administers a child support identify the property of the benefit preserve economic security, elders and program under Title IV–D of the Social recipient. younger adults living with disabilities Security Act. These orders are treated in A number of commenters suggested are generally counseled to transfer the same way as orders obtained by the that the phrase ‘‘a garnishment order incoming income into a safe savings United States. Under the rule, a issued against an account’’ in proposed account. The organization argued that financial institution must determine § 212.5(a) be rewritten to refer to ‘‘a whether an order was obtained by the garnishment order against a natural transferring exempt money into a United States or issued by a State child person.’’ These commenters pointed out secondary account should not be seen as support enforcement agency. In making that a garnishment order must be forfeiting the protection available for this determination, a financial directed against an individual rather exempt funds and that, at the very least, institution may rely on the presence of than a deposit account, as a garnishment beneficiaries should be notified by the a Notice of Right to Garnish Federal order is directed against a judgment financial institution before transferred Benefits, which must be attached or debtor and his or her property, and funds are released under the included with the order. If the notice is rarely against a deposit account. garnishment order and allowed the present, a financial institution is not Commenters indicated that this opportunity to show the institution that required to perform an account review definition would be more accurate and the transferred funds are exempt Federal or take actions otherwise required by also avoid capturing garnishment orders funds and therefore protected under the the rule. Rather, the financial institution directed against organizations. rule. follows its customary procedures for The Agencies have extended the The Agencies have revised § 212.5 to garnishment orders and treats the account review deadline from one state explicitly that funds transferred relevant account(s) as if no Federal business day to two business days. To from one account to another are benefit payment were present. However, address situations in which a financial excluded from the account review and the Agencies note that this exclusion institution receives a garnishment order the establishment of the protected does not alter an individual’s right to that does not include sufficient amount. Although the Agencies assert any protections for benefit funds information to identify whether the understand that exempt funds may be that may exist under applicable Federal debtor is an account holder, the rule transferred to a savings or other law. provides that in such a case the two secondary account following the initial business day deadline commences when deposit, it is not clear that transferred Deadline for Account Review (Proposed the financial institution receives funds necessarily retain their exempt § 212.5(a)) sufficient information to determine character in all cases, and, unlike a Most of the banks and bank trade whether the debtor is an account holder. direct deposit payment, that transfer groups that commented on the proposed Based on comments submitted by a transactions will be readily identifiable rule stated that the requirement to variety of financial institutions, the as containing exempt funds. perform an account review within one Agencies understand that when a If the source account from which business day of receipt of a garnishment financial institution receives a funds are transferred contains other order is unrealistic. Commenters stated garnishment order with insufficient deposits of non-exempt funds or that garnishment orders can be information to identify the debtor, it withdrawals of exempt funds, or if the delivered to any bank location and may notifies the creditor or court that receiving account contains other credits not reach the designated processing additional information is needed and or debits following the transfer of funds, department until after one day from and can take no action on the order there is no clear way to distinguish ‘‘receipt.’’ They also pointed out that until it receives such information. The balances transferred into the receiving sometimes States bundle together large rule does not affect this status quo account as exempt. While the Agencies numbers of garnishment orders and process, and recognizes that action on might develop a standard accounting deliver them in a batch. Financial an order, including the account review, convention to label and trace originally institutions requested that the final rule can’t begin until the debtor is identified exempt funds transferred over time, recognize the delivery of bundled/ as an account holder. doing so would likely generate batches of large numbers of In cases where a financial institution inaccurate or inappropriate results given garnishments delivered in one shipment is served a batch of a large number of the uniqueness of transactions in a and permit financial institutions to orders at the same time, the interim given case, and given the attenuated commence the account review (and final rule extends the account review connection that may exist between the accordingly, the lookback period) as deadline to a date that may be permitted original deposit and subsequent permitted by the creditor. Financial by the creditor that initiated the orders. transfer. Moreover, requiring the institutions argued that they should be Finally, the language in the interim examination of all account transfers allowed leeway in this regard as it may final rule has been revised to reflect that after a Federal benefit payment has been be impossible to meet the one day garnishment orders are issued against identified would impose a significant review requirement. debtors rather than accounts. burden on financial institutions, since

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they would not be able to rely on a to determine whether a garnishment benefit payments if a garnishment order transaction indicator, like the ACH order is a new order or an order that was is received. identifier, in searching account histories previously received, as this is Some financial institutions argued to determine whether transferred funds necessarily a fact-specific that the provisions of the rule on should be classified as exempt. determination. garnishment fees exceed the Agencies’ While the interim final rule states that statutory authority, stating that none of financial institutions should not attempt Continuing Garnishment the statutes cited as authority for the to trace the movement of funds between Responsibilities (Proposed § 212.6(e)) regulation allow the Agencies to limit or accounts in establishing a protected One commenter requested that the prohibit any fee a financial institution amount, the Agencies recognize that language of proposed § 212.6(e) be charges for any service based on the exempt funds may be transferred and revised. That section provides that a source of funds in the account. One note that nothing in the rule limits an financial institution ‘‘shall have no financial institution argued that the individual’s right to assert a further continuing obligation to garnish’’ prohibition may amount to an unlawful exemption for additional funds or to amounts deposited or credited to the taking, running afoul of the Fifth alter the exempt status of transferred account following the account review. Amendment to the United States funds that may be identifiable and The commenter observed that this Constitution. Another financial traceable when the facts of a given case wording would allow a financial institution commented that the are reviewed. institution to decide whether to comply proposed rule contravenes a bank’s legal with the terms of a continuing right to take a security interest in its Access to Protected Amount by Account garnishment order, rather than deposit accounts and its common law Holder (Proposed § 212.6(a)) prohibiting a financial institution from right of offset. Many financial Consumer groups commented that the complying with the terms of a institutions argued that the imposition rule should make it clear that an continuing garnishment order. The of garnishment fees is a matter of account holder has ‘‘full, unfettered and interim final rule has been revised to contract between financial institutions customary’’ access to the protected make it clear that a financial institution and their customer, and that customers amount, to prevent banks from is not permitted to give effect to a agree to pay for fees and charges with improperly providing only limited continuing garnishment order affecting the maintenance of their deposit access to account holders. One an account containing a protected accounts. commenter urged that language be amount. Banks also opposed the garnishment added to preclude any attempts by fee restrictions as a matter of policy and Deduction of Garnishment Fees creditors to subsequently litigate equity. Some banks commented that (Proposed § 212.6(f), (g)) whether the ‘‘protected amount’’ actually they did not understand the distinction consists of exempt funds. Many comments were received on the drawn by the Agencies between a The rule has been revised to state that provisions in the proposed rule garnishment fee and other fees and a financial institution must ensure that regarding the imposition of garnishment charges incurred by a customer. Many the account holder has ‘‘full and fees by financial institutions. Consumer financial institutions commented that customary’’ access to the protected advocacy groups opposed the language they incur significant costs in amount. The Agencies intend by this in the proposed rule at § 212.6(f) that processing garnishment orders, and that language to ensure that after a affirms the ability of a financial garnishment fees should be permitted garnishment order is received, the institution to charge a customary whether or not an account has excess account holder continues to have the garnishment fee if the account contains funds beyond any protected amounts. same degree of access to the protected an unprotected amount. They argued Financial institutions also argued that funds that was provided prior to the that if a garnishment fee is prohibited there is no principled reason why receipt of the order. Additional language on exempt amounts, it should be benefit recipients should be allowed to also has been added to make it clear that prohibited regardless of whether the contract or pay for needed banking a financial institution’s calculation of exempt funds fall into the artificially services but be legally shielded from a the protected amount is not subject to a narrow scope of the protected amount. garnishment fee. Some financial legal action by a creditor challenging They commented that proposed institutions went further and argued that determination. § 212.6(f) should be deleted because it that in fairness to customers who do not may provide support for the imposition receive Federal benefit payments, a One-Time Account Review (Proposed of excessive fees. Consumer advocacy separate garnishment fee should be § 212.6(d)) groups further urged that the definition allowable for those accounts with One bank requested clarification on of ‘‘garnishment fee’’ be amended to Federal benefit payments to help defray the requirement in proposed § 212.6(d) include not only a fee for imposing the the extra costs to the bank imposed by to determine whether a garnishment garnishment, but rather any fee that this regulation and to recognize benefit order that is received was previously arises as a result of a garnishment. received by the customer from the served on the bank. The bank Financial institutions, on the other protections of this rule. commented that financial institutions hand, strongly objected to restricting the Financial institutions also opposed often receive multiple orders from the collection of a garnishment fee to cases the proposed restriction to permit same creditor for the same account in which there are funds in the account assessing the fee only on the date of holder, and that it is difficult to in excess of the protected amount. They account review. One bank indicated that determine whether the receipt of a challenged the legality of the restriction it saw no purpose in mandating the date second order would be considered the and argued that it is unfair both to the on which the fee may be assessed and same order, which would not require financial institution and to other that if banks are afforded only a single, another account review; or a new or account holders, to whom the costs for specific date to assess the garnishment different order, which would require a administering these accounts will be processing fee, they may automatically new account review. The Agencies are transferred. Some financial institutions elect to assess this fee without regard to not addressing in the final rule what commented that this restriction may whether the fee may be waived in process financial institutions should use lead them to close accounts that contain certain instances.

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Other financial institutions indicated fee after the date of account review subsequently, including in cases where that if they could not recoup their costs because otherwise the rule would need the same garnishment order is served for processing garnishment orders, there to prescribe procedures that financial again on the financial institution. would be little incentive to allow the institutions would follow to monitor Similarly, § 212.6(g) preempts State account to remain open. Rather than accounts in real time to track deposits laws requiring continuing garnishments incur the risk of future garnishment and withdrawals, determine whether and prohibits a financial institution expenses, some financial institutions new deposits are exempt or not, and from freezing funds deposited after the indicated that they might choose to determine whether a garnishment fee one-time account review. Likewise, close accounts for this population. could be imposed. The Agencies believe § 212.6(h) provides that a financial Commenters noted that Federal benefit that such an approach would be institution may not collect a payment accounts are often small- complex, confusing for account holders garnishment fee from unprotected funds balance, labor intensive accounts that and at odds with the one-time review after the date of account review. can be unprofitable for banks to process established under the rule. The Agencies have necessarily maintain, and that limitations in the Accordingly, the rule restricts the established these provisions to give proposed rules on the ability of banks to timing of garnishment fees. proper effect to the anti-garnishment recover their costs for handling The Agencies do not believe that the statutes, since it is not feasible to garnishments exacerbate this situation. anti-garnishment statutes support a implement both a protected amount and Some legal aid organizations and general prohibition on imposing a to permit continuing actions related to consumer advocacy groups appeared to garnishment fee against non-protected the garnishment order. Because the anticipate that financial institutions funds. In addition, the Agencies are not status of an account will change with might respond to the rule by closing expanding the prohibition on every transaction following the account accounts held by benefit recipients if garnishment fees to apply to ‘‘any fee review, requiring both protection for the accounts are garnished. These that arises as a result of a garnishment,’’ exempt funds and permitting other organizations indicated that this because such a definition would be subsequent actions would necessitate practice already occurs in some overly broad. The Agencies are not in the monitoring of transactions in real instances. Specifically, in some cases this rulemaking addressing a financial time to continually re-assess the account banks that receive a garnishment order institution’s right to take a security balance and determine which funds are for an account containing only exempt interest in its deposit accounts or to exempt and which are not exempt from funds send the account holder a check exercise a contractual right to deduct garnishment. As was discussed in the for the exempt funds and close the fees or a common law right of offset supplementary information to the account. Legal aid organizations against funds that are exempt from proposed rule, the Agencies believe that requested that the final rule prohibit garnishment, except in the very narrow any policies that would necessitate the this practice, which causes hardship for context of deducting a garnishment on-going monitoring of transactions benefit recipients. processing fee from an account would be neither operationally nor The interim final rule prohibits containing a protected amount economically feasible. Therefore, the financial institutions from charging a following receipt of a garnishment rule does not permit actions related to garnishment fee against a protected order. a garnishment order after the date of amount, and also prohibits the charging The interim final rule requires account review, and requires all of a garnishment fee after the date of the financial institutions to ensure that permissible actions to be based on the account review. The Agencies believe account holders have full and balance in the account derived from that the anti-garnishment statutes customary access to protected amounts. transactions occurring at or before the support a prohibition against the The rule does not address the open of business on the date of account imposition of a garnishment fee if the conditions under which financial review. account contains only a protected institutions may close accounts, which amount. Some cases have held that the Agencies believe is beyond the Financial Institution Right of Offset financial institutions may charge ambit of this rule. (Proposed § 212.8) account-related fees against protected Consumer advocacy groups urged the No Actions After the Date of Account funds in an account, and that the Agencies to delete the language in Review (Proposed § 212.6) charging of the fees does not constitute § 212.8(b) of the proposed rule stating garnishment or other legal process. For The proposed rule was based on the that nothing in the rule shall be example, courts have upheld a bank’s principle that a financial institution’s construed to invalidate any term or right to charge overdraft fees from Social response to a garnishment order must be condition of an account agreement that Security and Supplemental Security a one-time event, based on the status of is not inconsistent with the rule, on the Income funds deposited to a bank an account on the date of account basis that this provision tacitly supports account. See Lopez v. Washington review, and it prohibited financial setoffs from exempt funds. Consumer Mutual Bank, 2002 U.S. App. LEXIS institutions from taking any action on groups noted that the proposed rule is 24344; see also Wilson v. Harris, 2007 the account in response to the silent as to overdraft charges and other U.S. Dist. LEXIS 65345. The Agencies garnishment order after the date of setoffs against exempt funds. These view garnishment processing fees as account review. The interim final rule commenters supported prohibiting distinct from other account-related fees. adopts this principle, which applies to setoffs against exempt funds for all If funds in an account are protected all actions that a financial institution types of fees, arguing that there are some from garnishment, the Agencies find it may perform on an account, including cases that have held it is not legal for unreasonable to conclude that those examining deposits, freezing funds, financial institutions to seize exempt same funds can be subjected to a fee for protecting funds, and collecting funds. Alternatively, they requested that handling a garnishment order—an order garnishment fees. Accordingly, the Agencies clarify that this provision that itself cannot legally be processed § 212.6(f) of the interim final rule should not be construed to validate against the funds. provides that a financial institution account agreements that permit the The rule prohibits a financial must perform the account review only seizure of exempt funds through setoff institution from charging a garnishment one time and may not repeat the review or any other means.

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In contrast, some financial sources which is likely to generate Some financial institutions institutions commented that it is additional confusion. Some commenters commented that the list of benefits important that their existing rights of suggested that the rule provide, at least required under § 212.7(a)(7) of the setoff be protected. Credit unions in the jurisdictions in which the proposed rule to be included in the commented that currently there are two creditor is required to send garnishment notice is confusing and misleading, both different mechanisms credit unions can information to the debtor, that the because account holders may construe it employ in order to use members’ funds creditor be required also to send a to mean that the funds should not have on deposit to satisfy outstanding debts notice regarding Federal benefit been held and because in many States to the credit union. First, credit unions payments to the debtor. Two State child these funds are not exempt once may create a contractual lien during the support enforcement agencies objected deposited in a bank account. account opening and lending process to the requirement that any notice be Commenters requested that this that provides the credit union the right sent, on the basis that the notice would requirement be amended to state simply to use shares on deposit in the event an lead to the withdrawal of funds and that Federal or State law may provide account holder becomes delinquent on create the false impression that funds additional exemptions and that a loan issued by the credit union. are protected from child support comparable changes be made to the Additionally, the Federal Credit Union enforcement action. model form. Act (FCUA) provides credit unions the Many financial institutions also A number of financial institutions statutory right to enforce a lien against commented on specific aspects of the requested the removal or revision of the a member’s shares if the member is notice and notice requirement. Some requirement at § 212.7(a)(8) of the delinquent on a loan issued by the financial institutions asked for longer proposed rule that the notice explain credit union. See 12 U.S.C. 1757(11). In periods of time ranging from 3 to 7 days the account holder’s right to assert a order to take advantage of the statutory to send the notice in light of the burden further garnishment exemption for lien, a credit union must comply with it imposes. One commenter noted that amounts above the protected amount by 12 CFR 701.39 of the National Credit § 212.7 of the proposed rule does not completing exemption claims forms. Union Administration’s (NCUA) rules indicate who is to receive the notice in They argued that this requirement and regulations. cases where the account in question is imposes a considerable burden on the The proposed rule did not address, held in the names of two or more financial institution to keep apprised of nor did the Agencies intend to address, persons, and recommended that in the the process for claiming exemptions in each jurisdiction and to provide a the right of financial institutions to set case of multiple account holders, notice off obligations of an account holder description of the process in the notice to any of the account holders should be against an account to which Federal to the account holder, particularly for an sufficient, regardless of who is benefit payments have been deposited. institution with a presence in a large ultimately required to receive the The rule is intended to protect account number of States. Some financial notice. Some banks commented that if a holders who receive directly deposited institutions argued that this provision customer has more than one account at benefit payments from difficulties that goes beyond the stated purpose of the a bank, the bank should have the option may arise when a garnishment order regulation, because in most cases the of sending one notice for all accounts or against an account holder is served on relevant exemptions would be under separate notices for each account. They a financial institution. Accordingly, the State law, which is not within the scope stated that this would provide flexibility issue of setoff by financial institutions is of the Federal garnishment laws. One outside the scope of the interim final to design bank processes in the manner large bank expressed concern that by rule. the bank deems most efficient while providing guidance on the statutory ensuring that the customer receives the processes, a bank risks creating the Notice (Proposed § 212.6(c), § 212.7, information he or she needs. perception that it is providing legal Appendix A) Financial institution trade groups advice. Some commenters urged that the Comments on the required notice to recommended that the notice notice simply state that the account account holders were received from a requirement not apply in situations holder may have a right to assert a broad array of commenters. The most where a financial institution finds when further garnishment exemption for frequent comment, which was received it conducts the account review that the amounts above the protected amount by from all types of commenters, was that account reflects an overdraft or zero complying with the processes provided the model notice needs to be rewritten balance, or where there are no funds in by State law. Other commenters to be more easily understandable, and the customer’s account that exceed the recommended that this provision clarify that the Agencies should have the notice protected amount. They expressed that such claims are not against a bank revised by a literacy expert and tested. substantial concerns that the that has complied with the proposed In addition, financial institutions requirement to provide notice in these rules, so as to avoid potential customer commented broadly on a wide range of cases would unnecessarily confuse the confusion regarding available remedies other issues relating to the notice. Many account holder, and that customers and next steps he or she should take. financial institutions objected to the receiving this notice are likely to call Several commenters suggested that the requirement to send any notice, the bank for an explanation, requiring Agencies urge the States to incorporate observing that this is outside the scope additional resources to handle calls. into State garnishment forms model of a financial institution’s They also indicated that requiring language on the protection of Federal responsibilities with respect to its notice in these cases would be a benefits, stating that uniform adoption customers, imposes considerable costs significant burden for financial of standard language on Federal benefit burdens on financial institutions, and institutions. One bank estimated that payments would reduce the potential likely will result in follow-up telephone approximately 60% of the orders it confusion to account holders. calls which add to customer service receives would involve accounts where Some financial institutions requested burdens. Commenters argued that no funds were frozen, either because that § 212.7(a)(9) and (10) of the debtors who have protected Federal there are no funds in the account or proposed rule be revised to state that the benefits deposited to their accounts will because the funds that are present are notice include the means of contacting receive two notices from two different fully exempt. the judgment creditor and court only if

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that information is contained in the creditor’s constitutional rights to notice wish to consult; and a statement that by garnishment order served on the that its State law rights are preempted. issuing the notice, the financial financial institution. They contended that such a result is institution is not providing legal advice. In contrast to financial institutions, patently unfair to judgment creditors/ In addition, the rule has been revised to consumer advocacy and legal aid garnishors that have a right to know the state that in providing the notice, a organizations commented that the particulars as to why a financial financial institution shall not be deemed notice is important in ensuring that institution did not freeze certain funds to be providing legal advice to the account holders are informed of the otherwise subject to collection under account holder. The requirement that receipt of a garnishment order and State law. financial institutions provide the means aware of their rights in relation to it. The interim final rule contains a of contacting the creditor and court has One consumer advocacy group number of changes to the notice been qualified to make it clear those proposed that for those consumers that provisions and to the model notice requirements apply only if the order do in fact have their accounts garnished, itself, reflecting the comments received. includes that information. Lastly, the notice be required to be given by either The amount of time required to issue Agencies are not including a registered mail or personally served to the notice has been increased from two ensure that the consumer actually business days to three business days requirement in the rule to send a copy receives notice of the garnishment. from the date of account review. The of the notice to the creditor. The Several legal services organizations Agencies believe that the notice should Agencies believe it is inappropriate for commented that the model notice be sent to the account holder named in the financial institution to bear the cost should advise the debtor of his right to the garnishment order, and not to a co- of notification to a creditor since the consult an attorney and include owner of an affected account, and have financial institution has no relationship information on the availability of free revised the rule accordingly. The with the creditor, in contrast to the legal aid attorneys. Agencies agree with comments made by account holder. Consumer advocacy groups consumer advocacy organizations that Finally, the Agencies have revised the recommended that the notice specify the notice should identify the account model notice in the interim final rule to exactly how much money the bank has affected by the order and specify exactly improve its readability based on input frozen and the name and number of the how much money the financial from financial education and literacy account in which these funds are found. institution has frozen, if any, as well as professionals. The organization of the They also recommended that the notice the amount of any garnishment fee model notice has been changed to a specify the amount of any garnishment assessed. The Agencies do not believe question-and-answer format with a chart fee the bank has assessed against the that notice should be required to be sent showing the status of the benefit recipient’s account. Other by registered mail or personally served recipient’s account, and the language recommendations included (1) the on the account holder. The Agencies do has been re-written to reflect more basic notice should state that future funds not believe it serves a useful purpose, literary standards and comprehension deposited in the account will not be and agree that it may be confusing to an levels. subject to seizure as the result of this account holder, for a notice to be sent garnishment order; (2) the notice needs in situations where a financial Preemption of State law (Proposed to include information about local, free institution finds when it conducts the § 212.9) legal programs; and (3) the regulation account review that the account reflects itself should reference and specifically an overdraft or zero balance. In contrast, Some financial institutions expressed recommend the use of the model notice however, the Agencies do not agree that confusion over the interplay of the rule with blanks to be filled in for State- a notice should not be required where with State law and questioned how the specific information. there are no funds in the customer’s preemption of State law would work in As indicated above, both consumer account that exceed the protected certain situations. These commenters advocacy organizations and financial amount. Therefore, the interim final rule urged the Agencies not to preempt institution trade groups criticized the requires notice to the account holder if greater protections that States provide complexity of the wording of the the financial institution’s account with respect to garnishment of bank proposed model notice, noting that it review results in the establishment of a accounts and asked that the final rule uses complex language, compound protected amount. explicitly state that it does not preempt sentences, and long paragraphs. Many In the interim final rule, the Agencies State laws that are at least as protective commenters submitted proposed have attempted to strike a balance to account holders as Federal law. revisions to the wording to improve its between ensuring that account holders The interim final rule preempts any readability. In general, commenters receive useful, relevant information and encouraged the Agencies to consider avoiding the complexity and confusion State or local government law that is testing provisional form(s) with that a lengthy notice could create. The inconsistent with any provision of the consumer focus groups directly or Agencies are also cognizant of the rule. Such a preemption occurs only to through voluntary financial institutions; concerns expressed by financial the extent that an inconsistency to strike references to creditor and court institutions that the provision of certain between the rule and State law would contact information; and to rewrite the information may be unduly burdensome prevent a financial institution from notice at more basic literacy standards, and could create the impression that the complying with the requirements of the not to exceed an 8th grade reading level. financial institution is providing legal rule. Some State laws, for example, may An organization representing advice or acting as an intermediary protect from garnishment funds in a collection attorneys requested that the between the debtor and the court or bank account in an amount that exceeds final rule require financial institutions creditor. Accordingly, the interim final the protected amount. The interim final to provide notice not only to the rule allows, but does not require, rule does not displace or supersede such account holder but also to the judgment financial institutions to include: a State law requirement, provided that creditor. They argued that since the rule Additional information regarding State the financial institution has complied does not require notice to the judgment or local rules; the availability of legal with all of the requirements of the creditor/garnishor, it violates the resources that account holders might interim final rule.

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Safe Harbor (Proposed § 212.10) information or to handle the exceptional one or more exempt benefit payments Some commenters stated that circumstances. Similarly, because the were directly deposited to the account. proposed § 212.10(c)(3), which allows definition of ‘‘benefit payment’’ has been The financial institution may rely on the for the account holder to provide revised to refer to payments in which presence of certain ACH identifiers to express written instructions to use an the ACH identifier is present, it is clear determine whether a payment is an otherwise protected amount to satisfy that a financial institution that relies on exempt benefit payment for purposes of the garnishment holder, raises concerns. the ACH record would be covered by the rule. These commenters recommended that the safe harbor. The Agencies are The financial institution must allow proposed § 212.10(c)(3) be removed retaining the good faith requirement as the account holder to have access to an from the regulation because, although a condition for the availability of the amount equal to the lesser of the sum the instructions need to be received by safe harbor. In addition, the Agencies do of exempt payments directly deposited the bank after the date of the not believe it is appropriate to protect to the account during the lookback from liability a financial institution that garnishment, there is nothing to prevent period or the balance of the account on voluntarily releases funds that fall a creditor from forcing a recipient to the date of the account review (the within the rule’s definition of ‘‘benefit ‘‘ ’’ sign such instructions in advance. If this protected amount ). In addition, the payments.’’ This could result in the section remains in the rule, these financial institution must notify the release of months’ or years’ worth of commenters recommended that account holder that the financial benefit payments, without regard to language be added that such institution has received a garnishment withdrawals, account activity or the instructions cannot be a result of a prior order. The notice must briefly explain extent to which funds in the account agreement. what a garnishment is and must also retain the characterization of exempt Many banks commented that the include other information regarding the payments. Agencies should expressly extend the account holder’s rights. There is no safe harbor provisions to instances Enforcement and Record Retention requirement to send a notice if the where financial institutions are unable (Proposed § 212.11) balance in the account is zero or negative on the date of account review. to comply with the requirement to Some consumer groups commented perform an account review within one Financial institutions may choose to use that they had significant concerns a model notice contained in the rule in business day due to the need to obtain regarding lack of enforcement of the additional information or to handle the order to be deemed to be in compliance proposed rule. These commenters noted with the notice content requirements. exceptional circumstances. Some that while the Federal banking agencies financial institutions asked that the safe For an account containing a protected have the right to enforce the proposed amount, the financial institution may harbor be pushed back to the point rule, they are often overwhelmed and where the financial institution relies on not collect a garnishment fee from the lack the resources to address all of the protected amount. The financial the ACH record to identify a benefit abuses in the banking system. They payment, stating that the safe harbor institution may only charge a recommended that the rule include a garnishment fee against funds in the should clarify that when the institution private right of action so consumers relies on such record, the payment account in excess of the protected themselves can force financial amount and may not charge or collect a should be deemed to be a benefit institutions to comply with the new payment. Some commenters urged the garnishment fee after the date of account rules. review. Financial institutions that Agencies to strike the requirement of Many banks noted that although the good faith compliance from proposed comply with the rule’s requirements are proposed rule required that records be protected from liability. § 212.10 as a condition to the safe maintained to demonstrate compliance harbor because this creates a triable with the rule, the proposed rule did not IV. Section-by-Section Analysis for 31 issue of fact before the safe harbor is specify a time period for the CFR Part 212 available. Other commenters suggested requirement to maintain records. Most The provisions of the rule are set forth that the safe harbor be expanded to banks that commented on this issue in a new part 212 to 31 CFR. SSA, VA, protect a financial institution from recommended that a time period of one RRB and OPM are each amending their liability in cases where the financial year following the account review be existing regulations to include a cross- institution, after a review of its own stipulated. reference to 31 CFR part 212. records, releases to the account holder Congress did not provide a private benefit payments as defined by the rule. right of action in the statutes prohibiting Section 212.1 The Agencies have revised the garnishment of Federal benefits and Section 212.1 sets forth the purposes language of the proposed rule to make therefore the interim final rule does not of the rule. it clear that an account holder may not include such a provision. The Agencies instruct a financial institution in have specified a two-year record Section 212.2 advance or in a standing agreement to retention period in the rule. The rule applies to every entity use exempt funds to satisfy a defined as a financial institution, if the III. Summary of Interim Final Rule garnishment order. Apart from this financial institution holds accounts to change and other minor technical Under the rule, a financial institution which benefit payments are directly revisions, the Agencies do not believe that receives a garnishment order must deposited by one or more of the any change to the safe harbor language first determine if the United States or a Agencies. is necessary. Changes to the deadline for State child support enforcement agency performing the account review is the plaintiff that obtained the order. Section 212.3 adequately address the concern that the If so, the financial institution follows its Various terms used in the regulation safe harbor should cover financial customary procedures for handling the are defined in section 212.3. ‘‘Account institutions that are unable to comply order. If not, the financial institution holder’’ means a natural person against with the requirement to perform an must review the account history for the whom a garnishment order is issued and account review within one business day prior two-month period to determine whose name appears in a financial due to the need to obtain additional whether, during this ‘‘lookback period,’’ institution’s records as the direct or

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beneficial owner of an account. period that begins on April 30 would review is extended until the financial ‘‘Account’’ is defined to mean any end on February 28 (or 29 in a leap institution is able to obtain such account, whether a master account or year), to reflect the fact that there are not information. In addition, in cases where sub account, at a financial institution 30 days in February. the financial institution is served a and to which an electronic payment ‘‘Protected amount’’ is defined as the batch of a large number of orders, the may be directly routed. The definition lesser of (i) the sum of all benefit deadline is extended to whatever date is includes master and sub accounts to payments posted to an account between permitted under the terms of the reflect account structures used by credit the close of business on the beginning garnishment orders. This provision is unions. As defined, ‘‘account’’ does not date of the lookback period and the intended to address situations in which include an account to which a benefit open of business on the ending date of a single batch containing multiple payment is subsequently transferred the lookback period, or (ii) the balance garnishment orders is received. This following its initial delivery by direct in an account at the open of business on provision does not mean that a financial deposit to another account. the date of account review. institution may extend the deadline The definition of ‘‘benefit payment’’ is ‘‘State’’ is defined to mean a State of simply because a large number of limited to direct deposit payments that the United States, the District of separate orders are received at one time. include an ‘‘XX’’ in positions 54 and 55 Columbia, the Commonwealth of Puerto If the account review shows that no of the Company Entry Description field Rico, the Commonwealth of the benefit payments were deposited to the in the Batch Header Record of the direct Northern Mariana Islands, American account during the lookback period, deposit entry. Because benefit recipients Samoa, Guam, or the United States then the financial institution would can cash checks rather than deposit Virgin Islands. follow its otherwise customary them and take the risk that funds will ‘‘State child support enforcement procedures for handling the order. If a be garnished, financial institutions do agency’’ means the single and separate benefit payment was deposited into the not need to examine accounts to organizational unit in a State that has account during the lookback period, identify benefit checks for purposes of the responsibility for administering or then the financial institution must complying with the rule. To determine supervising the State’s plan for child follow the procedures set forth in whether a payment constitutes a benefit and spousal support pursuant to section 212.6. payment, financial institutions may rely 42 U.S.C. 654, Title IV, Part D of the Section 212.5(d) lists factors that are on the presence of an ‘‘XX’’ encoded in Social Security Act. not relevant to a financial institution’s account review. The commingling of positions 54 and 55 of the Company Section 212.4 Entry Description field of the Batch exempt and nonexempt funds in the Header Record of a direct deposit entry. Section 212.4 of the rule sets forth the account is not relevant to the account ‘‘Financial institution’’ is defined as a first action that a financial institution review, and neither is the existence of bank, savings association, credit union must take when it receives a a co-owner on the account. Similarly, or other entity chartered under Federal garnishment order, which is to the fact that benefit payments to or State law to engage in the business of determine whether the order was multiple beneficiaries may have been banking. The definition is intended to obtained by the United States or a State deposited to an account during the be very broad, in order to capture any child support enforcement agency. To lookback period is not relevant, as could financial institution that might hold an make this determination, financial occur if an individual receives account to which Federal benefits may institutions may rely on the inclusion of payments on behalf of several be directly deposited. a Notice of Right to Garnish Federal beneficiaries. Finally, any instructions The definition of ‘‘garnish’’ and Benefits, as set forth in Appendix B. For or information in a garnishment order ‘‘garnishment’’ are taken directly from orders obtained by the United States or are not relevant, including information the wording of Agency statutes a State child support enforcement about the nature of the debt or establishing the exemption of certain agency, the financial institution is to obligation underlying the order. Federal benefit payments from follow its otherwise customary Section 212.5(e) makes it clear that garnishment. ‘‘Garnishment fee’’ is procedures for handling the order. For financial institutions must perform the defined to mean any kind of a fee that all other orders, the financial institution account review before taking any action a financial institution charges to an is required to follow the procedures in related to the garnishment order that account holder related to the receipt or sections 212.5 and 212.6. may affect funds in an account. Section processing of a garnishment order. 212.5(f) requires a separate account ‘‘Garnishment order’’ and ‘‘order’’ are Section 212.5 review for each account owned by an defined to mean a writ, order notice, Section 212.5 outlines the account individual against whom a garnishment summons, or similar written instruction review a financial institution must order has been issued, even if an issued by a court to effect a conduct if it has determined, pursuant individual holds more than one account garnishment, as well as an order issued to section 212.4, that a garnishment at a financial institution. For example, by a State child support enforcement order was not obtained by the United if an individual maintains two accounts agency. States or a State child support at the same financial institution, and ‘‘Lookback period’’ is defined to mean enforcement agency. In such cases, a payments issued under two different the two month period that (i) begins on financial institution must review the benefit programs are directly deposited the date preceding the date of account history of the account being garnished to each account, both accounts must be review and (ii) ends on the to determine if a benefit payment was separately reviewed and a separate corresponding date of the month two deposited into the account during the protected amount must be calculated months earlier, or on the last date of the lookback period. Generally, the account and applied for each account. Under month two months earlier if the review must be completed within two section 212.5(f), a benefit payment that corresponding date does not exist. For business days following receipt of the is directly deposited to an account and example, under this definition, the order. If there is insufficient information then subsequently transferred to another lookback period that begins on included in the order to determine account is not treated as a benefit November 15 would end on September whether the debtor is an account holder, payment for purposes of the second 15. On the other hand, the lookback the deadline for completing the account account. For example, if a benefit

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payment is directly deposited to an account, the financial institution must rules and protections, to avoid individual’s checking account, and then execute a new account review. confusion regarding the interplay of the subsequently transferred to the Section 212.6(g) provides that a rule with State requirements, or to individual’s savings account, the financial institution shall not provide more complete information financial institution, in performing the continually garnish amounts deposited about an account. account reviews, would treat the or credited to the account following the The financial institution must deliver payment as a benefit payment for date of account review, and may not the notice directly to the account purposes of the checking account, but take any action to freeze any amounts holder, and only information and not for purposes of the savings account. subsequently deposited or credited documents pertaining to the unless served a new or different garnishment order may be included in Section 212.6 garnishment order. A small number of the communication. The notice must be Section 212.6 contains the provisions States authorize the issuance of a sent within three business days from the that apply if a financial institution ‘‘continuing’’ garnishment order, i.e., an date of account review. If the account determines that one or more benefit order requiring the garnishee to holder has multiple accounts, the payments were deposited to an account monitor, preserve and remit funds financial institution may send one during the lookback period. In such a coming into the garnishee’s custody on notice with information related to all case, the financial institution must an ongoing basis. The rule operates to the accounts. Section 212.7(h) makes it calculate the protected amount, as prohibit a financial institution that is clear that by issuing a notice, a financial defined in section 212.3. A financial served with a continuing garnishment institution shall not be deemed to be institution may not freeze, or otherwise from complying with the order’s providing legal advice or creating any restrict the account holder’s access to, ongoing requirements. obligation to provide legal advice. the protected amount. The financial Section 212.6(h) prohibits a financial institution must provide the account institution from charging a garnishment Section 212.8 holder with ‘‘full and customary access’’ fee against a protected amount, and Section 212.8 makes it clear that the to the protected amount. The Agencies further prohibits a financial institution rule is not to be interpreted as limiting intend by this language to ensure that from charging or collecting such a fee any rights an individual may have after a garnishment order is received, after the date of account review, i.e., under Federal law to assert an the account holder continues to have retroactively. exemption from garnishment, or as the same degree of access to the altering the exempt status of funds in Section 212.7 protected funds that was provided prior the account. For example, although the to the receipt of the order. The Section 212.7(a) requires the financial rule does not require a financial protection against freezing triggered by institution to send the notice required institution to review and identify the depositing of exempt funds during under section 212.6(e) if a benefit Federal benefits deposited by check to the lookback period is automatic. A payment was deposited into an account an account, those funds are protected financial institution may not require an during the lookback period and the under Federal law and the account account holder to assert any right to a balance in the account on the date of holder may assert a claim for that garnishment exemption or take any account review was above zero dollars. protection in accordance with the other action prior to accessing the There is no requirement to send a notice procedures specified under the protected amount. if the balance in the account is zero or applicable law. In addition, it is Section 212.6(b) requires the financial negative on the date of account review. possible that an account holder could institution to calculate and establish a Section 212.7(b) sets forth the content of have exempt funds on deposit in excess protected amount for each account it the notice that financial institutions are of the protected amount. In that case, holds in the name of an account holder. required to send to account holders. The the account holder could assert the Under section 212.6(c), a protected financial institution must notify the protection available under Federal law amount calculated and established by a account holder that the financial for those funds. The rule does not limit financial institution is conclusively institution has received a garnishment or change the protected status of those considered to be exempt from order and must briefly explain what a funds. garnishment under law. garnishment is. The notice must also Section 212.8 provides that the rule is Section 212.6(e) requires the financial include other information regarding the not to be construed to invalidate any institution to send a notice to the account holder’s rights. Financial term or condition of an account account holder. The content and timing institutions may choose to use the agreement between a financial required for the notice are set forth in model notice in Appendix A to the rule, institution and an account holder, as section 212.7. in which case they will be deemed to be long as the term or condition is not Section 212.6(f) addresses the in compliance with the requirements of inconsistent with the rule. The situation in which a financial institution section 212.7(b). However, use of the requirements of the rule may not be receives service of the same model notice is optional. changed by agreement, except in the garnishment order more than once. The Section 212.7(c) permits, but does not narrow circumstance permitted under financial institution must execute the require, a financial institution to section 212.10(d)(3), i.e., where an account review one time upon the first include the following additional account holder instructs a financial service of a given garnishment order. If information in the notice: Means of institution, in written instructions dated the same garnishment order is contacting a local free attorney or legal after the date of service of the subsequently served again upon the aid service; means of contacting the garnishment order, to use exempt funds financial institution, the financial financial institution; and a statement to satisfy the order. Thus, a financial institution is not required to perform that the financial institution is not institution may not require an account another account review and is restricted providing legal advice by issuing the holder to waive any protection available from taking any action on the account. notice. Also, under section 212.7(d), the under the rule, nor may it include in an If the financial institution is financial institution may modify the account agreement terms inconsistent subsequently served a new or different content of the notice to integrate with the requirements of the rule. garnishment order against the same information about a State’s garnishment However, the section 212.6(b)

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requirement that a financial institution occurrence of a bona fide error or a 12866. The Office of Management and ensure that the account holder has settlement adjustment. Budget has reviewed this regulation. access to the protected amount would Section 212.10(c) provides a safe B. Regulatory Flexibility Acts be subject to any limitation on funds harbor specifically to a financial availability to which the account is institution that provides in good faith In the Regulatory Analysis to the subject. For example, if funds on any optional information in the notice proposed rule, the Agencies did not deposit are subject to a hold consistent to the account holder, as permitted in certify that the proposed rule would not with Regulation CC,2 or a limitation on section 212.7(c) and (d). Section have a significant economic impact on withdrawal applicable to a time deposit, 212.10(d)(3) allows a financial a substantial number of small entities, the proposed rule would not override or institution to follow an account holder’s in particular small financial institutions. affect those limitations. express instruction to use an otherwise While the Agencies believed the protected amount to satisfy the proposed rule likely would not have a Section 212.9 garnishment order. The instruction must significant impact on small financial Section 212.9 preempts any State or be in writing and must be delivered institutions, the Agencies indicated they local government law or regulation that after the date on which the financial did not have complete data to make a is inconsistent with any provision of the institution received the garnishment conclusive determination. Accordingly, rule, but only to the extent of the order. This provision does not permit an the Agencies prepared a joint Initial inconsistency. If a State law would account holder to instruct a financial Regulatory Flexibility Analysis (IRFA) prevent a financial institution from institution, in advance or in a standing in accordance with 5 U.S.C. 603 and complying with the requirements of the agreement, to use exempt funds to specifically requested comment on the rule, the State law is preempted. satisfy a garnishment order. proposed rule’s impact on small However, the rule does not preempt entities, including costs, compliance requirements under State law that are in Section 212.11 burden, and changes in operating addition to the rule’s requirements. For Under section 212.11, compliance procedures. The Agencies stated an example, some State laws may protect with the rule will be enforced by the interest in knowing whether particular from garnishment funds other than Federal banking agencies. Financial aspects of the proposed rule would be benefit payments, or may protect a institutions must maintain records of especially costly or burdensome. higher amount of benefit payments. account activity and actions taken in For purposes of the IRFA, a ‘‘small Other State laws may require protection handling garnishment orders sufficient entity’’ was a national bank, savings of a flat amount without regard to the to demonstrate compliance with the rule association, State member bank, or State types of funds that are deposited to an for a period of not less than two years or Federal credit union with assets of account. In such cases, the financial from the date on which the financial $175 million or less, based on institution will need to satisfy the rule’s institution receives the garnishment regulations promulgated by the Small requirements and then determine what, order. Business Administration (SBA). Using information provided by the commenter if any, additional obligations exist under Section 212.12 State law. The rule does not displace or or information available to the Agencies supersede such State law requirements, Section 212.12 provides that the rule regarding the asset size of a financial provided that the financial institution may be amended only by a joint institution commenting, the Agencies has complied with all the requirements rulemaking issued by Treasury and all identified comment letters from seven credit unions that qualified as a ‘‘small of the rule. of the agencies defined as a ‘‘benefit agency’’ in 31 CFR 212.3. entity’’ under the SBA regulations. The Section 212.10 Agencies also received comment letters Appendix A to Part 212 Section 212.10 provides a safe harbor from several financial institution for financial institutions that comply in Appendix A sets forth proposed industry associations whose good faith with the rule. Thus, for model language that would satisfy the membership could include small example, if a financial institution made notice requirements of section 212.7(b). entities. available the protected amount to an Financial institutions are not required to No small entity submitted comments account holder in accordance with the use this model language. However, specifically quantifying its projected rule, the financial institution would not financial institutions that use the model costs. Neither did any small entity be liable even if a judgment creditor notice will be deemed to be in provide information on the number of were able to establish in court that compliance with the requirements of court ordered garnishments it received. funds in the account at the time the section 212.7(b). All comments from entities of all sizes on the burden of the proposed rule were garnishment order was served were Appendix B to Part 212 attributable to nonexempt deposits. In qualitative or subjective, in that no Appendix B contains the form of addition, if a financial institution commenter offered empirical data or Notice of Right to Garnish Federal performed an account review within the statistical evidence to quantify the Benefits which is referred to in section two business day deadline, and funds economic impact. The following is a 212.4(a). were withdrawn from the account summary of comments and issues raised during this time, the financial Appendix C to Part 212 by the small entities and industry associations that may represent small institution would not be liable to a Appendix C contains examples creditor or court for failure to preserve entities. demonstrating how the Lookback Period Bank trade associations, while critical the funds in the account, even if there and Protected Amount are calculated. of various aspects of the proposed rule, was no protected amount for the generally acknowledged the need for a account. This protection exists for a V. Regulatory Analysis Federal regulation and indicated they financial institution despite the A. Executive Order 12866 could comply with it, even as they offered numerous suggestions for 2 Regulation CC, 12 CFR part 229, is the Federal It has been determined that this Reserve’s regulation establishing rules covering the interim final rule is a significant streamlining and simplifying its collection and return of checks by banks. regulatory action as defined in E.O. requirements. The small credit unions,

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and several but not all credit union number of small entities, in accordance approximately 70 hours or 3.4 percent trade associations, opposed the with 5 U.S.C. 605(b). of one annual full time equivalent. proposed rule and objected to various The Agencies’ certification that the Therefore, even if a financial institution provisions as time-intensive and interim final rule will not have a must use entirely manual processes to manual, and unreasonable given the significant economic impact on a comply with the rule, the facts on the required processing deadlines. substantial number of small financial volume of garnishment orders typically Two credit union trade associations institutions is based on three factual served on small credit unions indicated that many credit unions findings. demonstrate that the regulation will not would not have the data processing First, the Treasury surveyed a have a significant economic impact on capability to conduct a 60 day account representative sample of the 3,457 a substantial number of small entities. review and would have to conduct the active Federal credit unions with assets Second, information provided by the review manually, and suggested the of $50 million or less, which represents NCUA indicates that only 2% of small length of the lookback period be the three smallest asset strata tracked by Federal credit unions with assets of $20 reduced. One small credit union the National Credit Union million or less (fewer than 40 credit objected to the 60 day lookback period Administration (NCUA): Assets of less unions out of 1,924) use a manual indicating that it would pose an undue than $2 million, assets of at least $2 accounting system to maintain share operational burden requiring time, million but less than $10 million, and accounts and loan transactions and expense, and manpower not readily assets of at least $10 million but less would not be able to perform an account available. (Several small credit unions than $50 million. The survey sought review by accessing a system. Thus, also objected to the 60 day lookback information about the number of nearly all credit unions large and small period on the policy grounds that, for garnishment orders served on these would have a capability to search an those who truly subsist on Federal small credit unions, their administrative account history using an account benefits, 30 days was long enough and procedures for handling garnishment processing system with stored data or sufficient to fund a dispute over other orders, and amount of time it took to stored account statements to help exempt benefits.) Several credit union process a typical order. The survey identify exempt Federal benefit associations proposed allowing sample was a statistically valid payments. Therefore, the Agencies financial institutions to use a uniform representation of the entire population, conclude that there are not many credit flat amount as the protected amount reflecting the variations in asset size and unions that would not have the data asserting that this option negates the geographic location of all Federal credit processing capability to conduct a two need to conduct an account review and unions with assets of $50 million or month account review and would have becomes a much more manageable less. to conduct the review entirely process for credit unions with limited The survey indicated that the mean manually. In addition, based on resources. One credit union trade number of garnishment orders received inquiries made of the vendors providing association indicated that 90% of its annually by these small credit unions core processing systems to small credit members felt that requiring an account was five, and that both the median and unions, the Agencies note that there are review within one business day of mode number of garnishment orders no significant problems to enhancing receipt of a garnishment order was received annually was less than one. the systems to include specific unreasonable, but that two days struck The survey revealed that 97 percent of functionality for fully automating the the right balance between timeliness these smallest credit unions received measurement of the lookback period and flexibility. Many of the small credit fewer than six garnishment orders per and the conduct of the account review. unions expressed concern that the year, and that the rate at which Third, as more fully discussed in the proposed rule would not apply to garnishment orders were served was at supplementary information above, the garnishment orders obtained by the most a function of one order per year Agencies carefully considered the United States. Commenters also raised per $5 million in assets. The Agencies comments on the proposed rule and concerns about the requirement to issue conclude from this empirical data that have made a number of specific changes a notice to the account holder and the the interim final rule does not represent in the interim final rule based directly time allowed to produce the notice. One a significant burden on these small on comments designed to lessen the small credit union commented on the entities. Even if a small credit union administrative burden. These changes with assets under $50 million processed include among others: $175 million threshold used in the SBA • definition for a small credit union, a garnishment order entirely manually Increasing the amount of time indicating that a credit union with $55 and took an additional 2 hours to permitted to conduct an account review million in assets had little in common handle a garnishment order by from one business day to two business with a credit union with three times the following the new procedures in the days following the receipt of a assets, and that capabilities in staffing, interim final rule—including garnishment order, and allowing further operations, and cost tolerance varied conducting an account review, time to conduct the account review if greatly across the range of institutions establishing a protected amount, and the financial institution has difficulty in under $175 million in assets. mailing a notice—the actual processing determining whether a debtor is an time would on average represent account holder at the institution. Based on a thorough analysis of • comments on the proposed rule, and marginal work on the order of 10 hours Eliminating the requirement to based on a survey of small Federal per year. issue a notice to the account holder in credit unions conducted by the Treasury If the results of the survey are cases where the balance in an account extrapolated to other financial following the comment period,3 the is zero or negative on the date of institutions with up to $175 million in Agencies certify that this interim final account review, which based on assets, given a stable function of one rule will not have a significant comments from financial institutions is order per year per $5 million in assets, economic impact on a substantial a substantial proportion of cases. the burden of entirely manual • Increasing the amount of time 3 Survey, Information on Processing Garnishment compliance for the average small entity required to issue the notice from two Orders, OMB Control Number 1505–0225, would represent only marginal business days to three business days expiration date 2/28/2011. workload for one employee, or from the date of account review.

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• Eliminating the requirement that responsibilities among the various Railroad retirement benefits. The the notice must contain a means of levels of government. Federal agencies Railroad Retirement Act of 1974 does contacting the financial institution, promulgating regulations that have not require State law to apply in the thereby reducing the incidence of these Federalism implications must event of conflict between State and customer service calls related to debt consult with State and local officials, Federal law. disputes to which the financial and describe the extent of their Under 45 U.S.C. 352(e), Federal institution is not a party. consultation and the nature of the railroad unemployment and sickness • Eliminating the requirement to concerns of State and local officials in benefits are generally exempt from examine a garnishment order to the preamble to the regulation. garnishment. 45 U.S.C. 362(1) provides ascertain whether the plaintiff named in In the Agencies’ view, the rule may the RRB with rulemaking authority over the caption of the order is the United have Federalism implications, because issues rising from the administration of States, and allowing financial it has direct, although not substantial, Federal railroad unemployment and institutions to determine if a effects on the States, the relationship sickness benefits. The Railroad garnishment order is excluded from the between the national government and Unemployment Insurance Act does not rule’s administrative requirements by States, or on the distribution of power require State law to apply in the event relying solely on the presence of a and responsibilities among various of a conflict between State and Federal garnishment certification attached or levels of government. The provision in law. included with the order. the rule (§ 212.5) where the Agencies Under 5 U.S.C. 8346, for the Civil • Limiting record retention to 2 years, establish a process for financial Service Retirement System (CSRS) and in lieu of an open ended requirement to institutions’ treatment of accounts upon under 5 U.S.C. 8470, for the Federal retain records to demonstrate the receipt of a garnishment order could Employee Retirement Systems (FERS), compliance with the regulation. potentially conflict with State Federal retirement benefits are generally • Revising the definition of the garnishment laws prescribing a formula exempt from garnishment. 5 U.S.C. 8347 lookback period from 60 days to a two for financial institutions to pay such and 5 U.S.C. 8461, respectively, provide month ‘‘date-to-date’’ methodology, claims. the Director of OPM with the authority making the account review easier to The rule’s central provision requiring to make rules and regulations administer and less prone to errors. a financial institution to establish a concerning CSRS and FERS benefits. • Allowing financial institutions to protected amount will affect only a very OPM benefits statutes do not require rely solely and conclusively on the small percentage of all garnishment State law to apply in the event of exemption identifiers encoded in orders issued by State courts, since in conflict between State and Federal law. Federal ACH header records to the vast majority of cases an account In accordance with the principles of determine if a Federal benefit payment will not contain an exempt Federal Federalism outlined in Executive Order has been deposited to an account. The benefit payment. Moreover, States may 13132, the Agencies consulted with Agencies again note that the choose to provide stronger protections State officials on issues addressed in garnishment exemption identifiers in against garnishment, and the regulation this rulemaking. Specifically, the the Federal ACH header records will be will only override State law to the Agencies sought perspective on those included in a field that is captured and minimum extent necessary to protect matters where Federalism implications appears on account statements, which Federal benefits payments from could potentially conflict with State will facilitate both automated and visual garnishment. garnishment laws. The rule establishes searches for exempt Federal benefit Under 42 U.S.C. 407(a) and 42 U.S.C. certain processes that provide a payments. Hence, even the smallest 1383(d)(1), Federal Old-Age, Survivors, financial institution protection from financial institutions that do not and Disability Insurance benefits and liability when a Federal benefit payment maintain an automated processing Supplemental Security Income exempt from garnishment is directly system, but receive paper reports from payments are generally exempt from deposited into an account and the the organization that processes their garnishment. 42 U.S.C. 405(a) provides financial institution provides a certain ACH transactions, will be able to the Commissioner of Social Security amount of lifeline funds to the benefit perform the account review with the authority to make rules and recipient. regulations concerning Federal Old-Age, straightforwardly. D. Unfunded Mandates Reform Act of Survivors, and Disability Insurance Thus, the administrative requirements 1995 Determinations of the rulemaking have been benefits. The Social Security Act does substantively reduced based on not require State law to apply in the Section 202 of the Unfunded comments from financial institutions. event of conflict between State and Mandates Reform Act of 1995, Public For the foregoing reasons, the Federal law. Law 104–4 (Unfunded Mandates Act) Agencies conclude the interim final rule Under 38 U.S.C. 5301(a), benefits requires that an agency prepare a will not have a significant economic administered by VA are generally budgetary impact statement before impact on a substantial number of small exempt from garnishment. 38 U.S.C. promulgating a rule that includes a entities. 501(a) provides the Secretary of Federal mandate that may result in Veterans Affairs with the authority to expenditure by State, local, and tribal C. Executive Order 13132 Determination make rules and regulations concerning governments, in the aggregate, or by the Executive Order 13132 outlines VA benefits. The statutes governing VA private sector, of $100 million or more fundamental principles of Federalism, benefits do not require State law to in any one year. If a budgetary impact and requires the adherence to specific apply in the event of conflict between statement is required, section 205 of the criteria by Federal agencies in the State and Federal law. Unfunded Mandates Act also requires process of their formulation and Under 45 U.S.C. 231m(a), Federal an agency to identify and consider a implementation of policies that have railroad retirement benefits are reasonable number of regulatory ‘‘substantial direct effects’’ on the States, generally exempt from garnishment. 45 alternatives before promulgating a rule. the relationship between the national U.S.C. 231f(b)(5) provides the RRB with The Agencies have determined that this government and States, or on the rulemaking authority over issues rising rule will not result in expenditures by distribution of power and from the administration of Federal State, local, and tribal governments, or

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by the private sector, of $100 million or How the quality, utility, and clarity of 20 CFR Part 350 more. Accordingly, the Agencies have the information to be collected may be Alimony, benefit payments, child not prepared a budgetary impact enhanced; support, exempt payments, financial statement or specifically addressed the How the burden of complying with institutions, garnishment, preemption, regulatory alternatives considered. the collection of information may be railroad retirement, railroad minimized, including through the E. Plain Language unemployment insurance, application of automated collection recordkeeping. In 1998, the President issued a techniques or other forms of information memorandum directing each agency in technology; and 20 CFR Part 404 the Executive branch to use plain Estimates of capital or start-up costs Administrative practice and language for all new proposed and final and costs of operation, maintenance, procedure, aged, alimony, benefit rulemaking documents issued on or and purchase of services to provide payments, blind, disability benefits, after January 1, 1999. The Agencies information. exempt payments, financial institutions, specifically invite your comments on The collection of information in these garnishment, government employees, how to make this interim final rule regulations are found in §§ 212.6 and income taxes, insurance, investigations, easier to understand. For example: 212.11 and Appendices A and B. old-age, preemption, Survivors and Estimated total annual reporting • Have we organized the material to Disability Insurance, penalties, railroad burden: 125,000 hours. suit your needs? If not, how could this retirement, reporting and recordkeeping material be better organized? Estimated average annual burden per respondent: 8 hours. requirements, Social Security, travel • Are the requirements in the rule Estimated number of respondents: and transportation expenses, treaties, clearly stated? If not, how could the rule 15,771. veterans, vocational rehabilitation. be more clearly stated? • Estimated frequency of responses: As 20 CFR Part 416 Does the rule contain language or needed. jargon that is not clear? If so, which An agency may not conduct or Administrative practice and language requires clarification? sponsor, and a person is not required to procedure, alcoholism, benefit • Would a different format (grouping respond to, a collection of information payments, drug abuse, exempt and order of sections, use of headings, unless it displays a valid control payments, financial institutions, paragraphing) make the rule easier to number assigned by the Office of garnishment, investigations, Medicaid, understand? If so, what changes to the Management and Budget. penalties, preemption, reporting and format would make them easier to recordkeeping requirements, understand? G. Authority To Issue Interim Final Rule Supplemental Security Income (SSI), • What else could we do to make the The Administrative Procedure Act (5 travel and transportation expenses, rule easier to understand? U.S.C. 551 et seq.) (APA) generally vocational rehabilitation. requires public notice before F. Paperwork Reduction Act 31 CFR Part 212 promulgation of regulations. See 5 The information collections contained U.S.C. 553(b). The Agencies published a Benefit payments, exempt payments, in this interim final rule have been notice of proposed rulemaking financial institutions, garnishment, reviewed and approved by the Office of requesting comment on the proposed preemption, recordkeeping. Management and Budget (OMB) under garnishment rule on April 19, 2010 (75 38 CFR Part 1 the Paperwork Reduction Act (44 U.S.C. FR 20299). The Agencies have Administrative practice and chapter 35) and assigned OMB control considered the comments received in procedure, archives and records, benefit number 1510–0230. Under the developing this interim final rule but payments, cemeteries, claims, courts, Paperwork Reduction Act, an agency also wish to provide the public another crime, flags, exempt payments, financial may not conduct or sponsor, and an opportunity to comment on it. individual is not required to respond to, institutions, freedom of information, List of Subjects a collection of information unless it garnishment, government contracts, displays a valid OMB control number. 5 CFR Part 831 government employees, government property, infants and children, Comments on the collection of Administrative practice and inventions and patents, parking, information should be sent to the Office procedure, alimony, benefit payments, penalties, preemption, privacy, of Management and Budget, Attn: Desk claims, disability benefits, exempt reporting and recordkeeping Officer for the Department of the payments, financial institutions, requirements, seals and insignia, Treasury, Office of Information and firefighters, garnishment, government security measures, wages. Regulatory Affairs, Washington, DC employees, income taxes, 20503, with copies to [insert contact intergovernmental relations, law Department of the Treasury, Fiscal information], Department of the enforcement officers, pensions, Service (Treasury) Treasury, Washington, DC 20220. preemption, reporting and Authority and Issuance Comments on the collection of recordkeeping requirements, retirement. information must be received by May For the reasons set forth in the 24, 2011. Comments are specifically 5 CFR Part 841 preamble, Treasury adds a new part 212 requested concerning: Administrative practice and to Title 31 of the Code of Federal Whether the collection of information procedure, air traffic controllers, benefit Regulations, to read as follows: is necessary for the proper performance payments, claims, disability benefits, of the functions of the Agencies, exempt payments, financial institutions, PART 212—GARNISHMENT OF including whether the information will firefighters, garnishment, government ACCOUNTS CONTAINING FEDERAL have practical utility; employees, income taxes, BENEFIT PAYMENTS The accuracy of the estimated burden intergovernmental relations, law Sec. associated with the collection of enforcement officers, pensions, 212.1 Purpose. information; preemption, retirement. 212.2 Scope.

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212.3 Definitions. determine if a benefit agency has account at the open of business on the 212.4 Initial action upon receipt of a deposited a benefit payment into the date of account review. Examples garnishment order. account during the lookback period. illustrating the application of this 212.5 Account review. Benefit agency means the Social definition are included in Appendix C 212.6 Rules and procedures to protect Security Administration (SSA), the benefits. to this part. 212.7 Notice to the account holder. Department of Veterans Affairs (VA), the State means a State of the United 212.8 Other rights and authorities. Office of Personnel Management (OPM), States, the District of Columbia, the 212.9 Preemption of State law. or the Railroad Retirement Board (RRB). Commonwealth of Puerto Rico, the 212.10 Safe harbor. Benefit payment means a Federal Commonwealth of the Northern Mariana 212.11 Compliance and record retention. benefit payment referred to in § 212.2(b) Islands, American Samoa, Guam, or the 212.12 Amendment of this part. paid by direct deposit to an account United States Virgin Islands. Appendix A to Part 212—Model Notice with the character ‘‘XX’’ encoded in State child support enforcement to Account Holder positions 54 and 55 of the Company agency means the single and separate Appendix B to Part 212—Form of Notice Entry Description field of the Batch organizational unit in a State that has of Right to Garnish Federal Benefits Header Record of the direct deposit the responsibility for administering or Appendix C to Part 212—Examples of entry. supervising the State’s plan for child the Lookback Period and Protected Federal banking agency means the and spousal support pursuant to Title Amount Federal Deposit Insurance Corporation, IV, Part D, of the Social Security Act, 42 Authority: 5 U.S.C. 8346; 5 U.S.C. 8470; the Board of Governors of the Federal U.S.C. 654. 5 U.S.C. 1103; 31 U.S.C. 321; 31 U.S.C. 3321; Reserve System, the Office of the United States means: 31 U.S.C. 3332; 38 U.S.C. 5301(a); 38 U.S.C. Comptroller of the Currency, the Office (1) A Federal corporation, 501(a); 42 U.S.C. 405(a); 42 U.S.C. 407; 42 of Thrift Supervision, or the National (2) An agency, department, U.S.C. 659; 42 U.S.C. 1383(d)(1); 45 U.S.C. Credit Union Administration. commission, board, or other entity of 231f(b); 45 U.S.C. 231m; 45 U.S.C. 352(e); 45 Financial institution means a bank, the United States, or U.S.C. 362(1). savings association, credit union, or (3) An instrumentality of the United § 212.1 Purpose. other entity chartered under Federal or States, as set forth in 28 U.S.C. 3002(15). State law to engage in the business of The purpose of this part is to banking. § 212.4 Initial action upon receipt of a implement statutory provisions that Freeze or account freeze means an garnishment order. protect Federal benefits from action by a financial institution to seize, (a) Examination of order for Notice of garnishment by establishing procedures withhold, or preserve funds, or to Right to Garnish Federal Benefits. Prior that a financial institution must follow otherwise prevent an account holder to taking any other action related to a when served a garnishment order from drawing on or transacting against garnishment order issued against a against an account holder into whose funds in an account, in response to a debtor, and no later than two business account a Federal benefit payment has garnishment order. days following receipt of the order, a been directly deposited. Garnish or garnishment means financial institution shall examine the § 212.2 Scope. execution, levy, attachment, order to determine if the United States garnishment, or other legal process. or a State child support enforcement This part applies to: Garnishment fee means any service or agency has attached or included a (a) Entities. All financial institutions, legal processing fee, charged by a Notice of Right to Garnish Federal as defined in § 212.3. (b) Funds. Federal benefit payments financial institution to an account Benefits, as set forth in Appendix B to protected from garnishment pursuant to holder, for processing a garnishment this part. the following authorities: order or any associated withholding or (b) Notice of Right to Garnish Federal (1) SSA benefit payments protected release of funds. Benefits is attached to or included with Garnishment order or order means a under 42 U.S.C. 407 and 42 U.S.C. the order. If a Notice of Right to Garnish writ, order, notice, summons, judgment, 1383(d)(1); Federal Benefits is attached to or (2) VA benefit payments protected or similar written instruction issued by included with the garnishment order, under 38 U.S.C. 5301(a); a court or a State child support then the financial institution shall (3) RRB benefit payments protected enforcement agency, including a lien follow its otherwise customary under 45 U.S.C. 231m(a) and 45 U.S.C. arising by operation of law for overdue procedures for handling the order and 352(e); and child support, to effect a garnishment shall not follow the procedures in (4) OPM benefit payments protected against a debtor. § 212.5 and § 212.6. under 5 U.S.C. 8346 and 5 U.S.C. 8470. Lookback period means the two (c) No Notice of Right to Garnish month period that begins on the date Federal Benefits. If a Notice of Right to § 212.3 Definitions. preceding the date of account review Garnish Federal Benefits is not attached For the purposes of this part, the and ends on the corresponding date of to or included with the garnishment following definitions apply. the month two months earlier, or on the order, then the financial institution Account means an account, including last date of the month two months shall follow the procedures in § 212.5 a master account or sub account, at a earlier if the corresponding date does and § 212.6. financial institution and to which an not exist. Examples illustrating the electronic payment may be directly application of this definition are § 212.5 Account review. routed. included in Appendix C to this part. (a) Timing of account review. When Account holder means a natural Protected amount means the lesser of served a garnishment order issued person against whom a garnishment the sum of all benefit payments posted against a debtor, a financial institution order is issued and whose name appears to an account between the close of shall perform an account review: in a financial institution’s records as the business on the beginning date of the (1) No later than two business days direct or beneficial owner of an account. lookback period and the open of following receipt of (A) the order, and Account review means the process of business on the ending date of the (B) sufficient information from the examining deposits in an account to lookback period, or the balance in an creditor that initiated the order to

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determine whether the debtor is an account with amounts subsequently subsequently deposited or credited, account holder, if such information is transferred to another account. unless the institution is served with a not already included in the order; or new or different garnishment order, (2) In cases where the financial § 212.6 Rules and procedures to protect consistent with the requirements of this benefits. institution is served a batch of a large part. number of orders, by a later date that The following provisions apply if an (h) Impermissible garnishment fee. may be permitted by the creditor that account review shows that a benefit The financial institution may not charge initiated the orders, consistent with the agency deposited a benefit payment into or collect a garnishment fee against a terms of the orders. The financial an account during the lookback period. protected amount, and may not charge institution shall maintain records on (a) Protected amount. The financial or collect a garnishment fee after the such batches and creditor permissions, institution shall immediately calculate date of account review. consistent with § 212.11(b), and establish the protected amount for (b) No benefit payment deposited an account. The financial institution § 212.7 Notice to the account holder. during lookback period. If the account shall ensure that the account holder has A financial institution shall issue the review shows that a benefit agency did full and customary access to the notice required by § 212.6(e) in not deposit a benefit payment into the protected amount, which the financial accordance with the following account during the lookback period, institution shall not freeze in response provisions. then the financial institution shall to the garnishment order. An account (a) Notice requirement. The financial follow its otherwise customary holder shall have no requirement to institution shall send the notice in cases procedures for handling the assert any right of garnishment where: garnishment order and shall not follow exemption prior to accessing the (1) A benefit agency deposited a the procedures in § 212.6. protected amount in the account. benefit payment into an account during (c) Benefit payment deposited during (b) Separate protected amounts. The the lookback period; and lookback period. If the account review financial institution shall calculate and (2) The balance in the account on the shows that a benefit agency deposited a establish the protected amount date of account review was above zero benefit payment into the account during separately for each account in the name dollars and the financial institution the lookback period, then the financial of an account holder, consistent with established a protected amount. institution shall follow the procedures the requirements in § 212.5(f) to conduct (b) Notice content. The financial in § 212.6. distinct account reviews. institution shall notify the account (d) Uniform application of account (c) No challenge of protection. A holder named in the garnishment order review. The financial institution shall protected amount calculated and of the following facts and events in perform an account review without established by a financial institution readily understandable language. consideration for any other attributes of pursuant to this section shall be (1) The financial institution’s receipt the account or the garnishment order, conclusively considered to be exempt of an order against the account holder. including but not limited to: from garnishment under law. (2) The date on which the order was (1) The presence of other funds, from (d) Funds in excess of the protected served. whatever source, that may be amount. For any funds in an account in (3) A succinct explanation of commingled in the account with funds excess of the protected amount, the garnishment. from a benefit payment; financial institution shall follow its (4) The financial institution’s (2) The existence of a co-owner on the otherwise customary procedures for requirement under Federal regulation to account; handling garnishment orders, including ensure that account balances up to the (3) The existence of benefit payments the freezing of funds, but consistent protected amount specified in § 212.3 to multiple beneficiaries, and/or under with paragraphs (f) and (g) of this are protected and made available to the multiple programs, deposited in the section. account holder if a benefit agency account; (e) Notice. The financial institution deposited a benefit payment into the (4) The balance in the account, shall issue a notice to the account account in the last two months. provided the balance is above zero holder named in the garnishment order, (5) The account subject to the order dollars on the date of account review; in accordance with § 212.7. and the protected amount established by (5) Instructions to the contrary in the (f) One-time account review process. the financial institution. order; or The financial institution shall perform (6) The financial institution’s (6) The nature of the debt or the account review only one time upon requirement pursuant to State law to obligation underlying the order. the first service of a given garnishment freeze other funds in the account to (e) Priority of account review. The order. The financial institution shall not satisfy the order and the amount frozen, financial institution shall perform the repeat the account review or take any if applicable. account review prior to taking any other other action related to the order if the (7) The amount of any garnishment actions related to the garnishment order same order is subsequently served again fee charged to the account, consistent that may affect funds in the account. upon the financial institution. If the with § 212.6. (f) Separate account reviews. The financial institution is subsequently (8) A list of the Federal benefit financial institution shall perform the served a new or different garnishment payments subject to this part, as account review separately for each order against the same account holder, identified in § 212.2(b). account in the name of an account the financial institution shall perform a (9) The account holder’s right to assert holder against whom a garnishment separate and new account review. against the creditor that initiated the order has been issued. In performing (g) No continuing or periodic order a further garnishment exemption account reviews for multiple accounts garnishment responsibilities. The for amounts above the protected in the name of one account holder, a financial institution shall not amount, by completing exemption claim financial institution shall not trace the continually garnish amounts deposited forms, contacting the court of movement of funds between accounts or credited to the account following the jurisdiction, or contacting the creditor, by attempting to associate funds from a date of account review, and shall take as customarily applicable for a given benefit payment deposited into one no action to freeze any funds jurisdiction.

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(10) The account holder’s right to any term or condition of an account failing to honor a garnishment order in consult an attorney or legal aid service agreement between a financial cases where: in asserting against the creditor that institution and an account holder that is (1) A benefit agency has deposited a initiated the order a further garnishment not inconsistent with this part. benefit payment into an account during exemption for amounts above the the lookback period, or protected amount. § 212.9 Preemption of State law. (2) The financial institution has (11) The name of the creditor, and, if (a) Inconsistent law preempted. Any determined that the order was obtained contact information is included in the State or local government law or by the United States or issued by a State order, means of contacting the creditor. regulation that is inconsistent with a child support enforcement agency by (c) Optional notice content. The provision of this part is preempted to following the procedures in § 212.4. financial institution may notify the the extent of the inconsistency. A State (c) Protection for providing additional account holder named in the law or regulation is inconsistent with information to account holder. A garnishment order of the following facts this part if it requires a financial financial institution shall not be liable and events in readily understandable institution to take actions or make for providing in good faith any optional language. disclosures that contradict or conflict information in the notice to the account (1) Means of contacting a local free with the requirements of this part or if holder, as set forth in § 212.7(c) and (d). attorney or legal aid service. a financial institution cannot comply (d) Protection for financial (2) Means of contacting the financial with the State law or regulation without institutions from other potential institution, violating this part. liabilities. A financial institution that (3) By issuing the notice required by (b) Consistent law not preempted. complies in good faith with this part this part, the financial institution is not This regulation does not annul, alter, shall not be liable for: providing legal advice. affect, or exempt any financial (1) Bona fide errors that occur despite (d) Amending notice content. The institution from complying with the reasonable procedures maintained by financial institution may amend the laws of any State with respect to the financial institution to prevent such content of the notice to integrate garnishment practices, except to the errors in complying with the provisions information about a State’s garnishment extent of an inconsistency. A of this part; rules and protections, for the purposes requirement under State law to protect (2) Customary clearing and settlement of avoiding potential confusion or benefit payments in an account from adjustments that affect the balance in an harmonizing the notice with State freezing or garnishment at a higher account, including a protected amount, requirements, or providing more protected amount than is required under such as deposit reversals caused by the complete information about an account. this part is not inconsistent with this return of unpaid items, or debit card (e) Notice delivery. The financial part if the financial institution can transactions settled for amounts higher institution shall issue the notice directly comply with both this part and the State than the amounts originally authorized; to the account holder, or to a fiduciary law requirement. or who administers the account and (3) Honoring an account holder’s receives communications on behalf of § 212.10 Safe harbor. express written instruction, that is both the account holder, and only (a) Protection during examination and dated and provided by the account information and documents pertaining pending review. A financial institution holder to the financial institution to the garnishment order, including that complies in good faith with this following the date on which it has been other notices or forms that may be part shall not be liable to a creditor that served a particular garnishment order, required under State or local initiates a garnishment order, or for any to use an otherwise protected amount to government law, may be included in the penalties under State law, contempt of satisfy the order. communication. court, civil procedure, or other law for (f) Notice timing. The financial failing to honor a garnishment order, for § 212.11 Compliance and record retention. institution shall send the notice to the account activity during: (a) Enforcement. Federal banking account holder within 3 business days (1) The two business days following agencies will enforce compliance with from the date of account review. the financial institution’s receipt of a this part. (g) One notice for multiple accounts. garnishment order during which the (b) Record retention. A financial The financial institution may issue one financial institution must determine if institution shall maintain records of notice with information related to the United States or a State child account activity and actions taken in multiple accounts of an account holder. support enforcement agency has response to a garnishment order, (h) Not legal advice. By issuing a attached or included a Notice of Right sufficient to demonstrate compliance notice required by this part, a financial to Garnish Federal Benefits, as set forth with this part, for a period of not less institution creates no obligation to in § 212.4; or than two years from the date on which provide, and shall not be deemed to be the financial institution receives the offering, legal advice. (2) The time between the financial institution’s receipt of the garnishment garnishment order. § 212.8 Other rights and authorities. order and the date by which the § 212.12 Amendment of this part. financial institution must perform the (a) Exempt status. Nothing in this part This part may be amended only by a account review, as set forth in § 212.5. shall be construed to limit an rulemaking issued jointly by Treasury individual’s right under Federal law to (b) Protection when protecting or and all of the benefit agencies as defined assert against a creditor a further freezing funds. A financial institution in § 212.3. exemption from garnishment for funds that complies in good faith with this in excess of the protected amount, or to part shall not be liable to a creditor that Appendix A to Part 212—Model Notice alter the exempt status of funds that initiates a garnishment order for any to Account Holder may be protected from garnishment protected amounts, to an account holder A financial institution may use the under Federal law. for any frozen amounts, or for any following model notice to meet the (b) Account agreements. Nothing in penalties under State law, contempt of requirements of § 212.7. Although use of the this part shall be construed to invalidate court, civil procedure, or other law for model notice is not required, a financial

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institution using it properly is deemed to be IMPORTANT INFORMATION ABOUT account to pay off your debt. If this happens, in compliance with § 212.7. YOUR ACCOUNT you cannot use that money in your account. Information in brackets should be Date: What has happened to my account? completed by the financial institution. Where Notice to: the bracketed information indicates a choice Account Number: On [date of account review], we researched your account and identified one or more of words, as indicated by a slash, the Why am I receiving this notice? Federal benefit payments deposited in the financial institution should either select the On [date on which garnishment order was last 2 months. In most cases, Federal benefit appropriate words or provide substitute served], [Name of financial institution] payments are protected from garnishment. As words suitable to the garnishment process in received a garnishment order from a court to required by Federal regulations, therefore, we a given jurisdiction. [freeze/remove] funds in your account. The have established a ‘‘protected amount’’ of Parenthetical wording in italics represents amount of the garnishment order was for funds that will remain available to you and instructions to the financial institution and $[amount of garnishment order]. We are that will not be [frozen/removed] from your should not be printed with the notice. In sending you this notice to let you know what account in response to the garnishment most cases, this wording indicates that the we have done in response to the garnishment order. model language either is optional for the order. (Conditional paragraph if funds have been frozen) Your account contained additional financial institution, or should only be What is garnishment? included if some condition is met. money that may not be protected from Garnishment is a legal process that allows garnishment. As required by law, we have MODEL NOTICE: a creditor to remove funds from your [bank]/ [placed a hold on/removed] these funds in [credit union] account to satisfy a debt that the amount of $[amount frozen] and may [Financial institution name, city, and State, you have not paid. In other words, if you owe have to turn these funds over to your creditor shown as letterhead or otherwise printed at money to a person or company, they can as directed by the garnishment order. the beginning of the notice] obtain a court order directing your [bank]/ The chart below summarizes this [credit union] to take money out of your information about your account(s):

ACCOUNT SUMMARY AS OF [DATE OF ACCOUNT REVIEW]

Amount in Amount subject to garnishment (now [frozen/ Garnishment fee Account number account Amount protected removed]) charged

(If the account holder has multiple accounts, add a row for each account.)

Please note that these amount(s) may be (Conditional sentence if applicable for the garnish Federal benefits shall attach or affected by deposits or withdrawals after the jurisdiction) You can fill out a garnishment include with a garnishment order the protected amount was calculated on [date of exemption form and submit it to the court. following Notice, on official organizational account review]. You may contact the creditor that letterhead. garnished your account and explain that Information in brackets should be Do I need to do anything to access my additional funds are from Federal benefit completed by the United States or a State protected funds? payments and should be released back to child support enforcement agency, as You may use the ‘‘protected amount’’ of you. (Conditional sentence if contact applicable. Where the bracketed information money in your account as you normally information is in the garnishment order) The indicates a choice of words, as indicated by would. There is nothing else that you need creditor may be contacted at [contact a slash, the appropriate words should be to do to make sure that the ‘‘protected information included in the garnishment selected from the options. amount’’ is safe. order]. You may also consult an attorney (lawyer) Notice of Right to Garnish Federal Benefits Who garnished my account? to help you prove to the creditor who Date: llllllllllllllllll The creditor who obtained a garnishment garnished your account that additional funds [Garnishment Order Number]/[State Case ID]: order against you is [name of creditor]. are from Federal benefit payments and ______cannot be taken. If you cannot afford an The attached garnishment order was What types of Federal benefit payments are attorney, you can seek assistance from a free [obtained by the United States, pursuant to protected from garnishment? attorney or a legal aid society. (Optional the Federal Debt Collection Procedures Act, In most cases, you have protections from sentences) [Name of State, local, or 28 U.S.C. § 3205, or the Mandatory Victims garnishment if the funds in your account independent legal aid service] is an Restitution Act, 18 U.S.C. § 3613, or other include one or more of the following Federal organization that provides free legal aid and Federal statute]/[issued by (name of the State benefit payments: can be reached at [contact information]. You child support enforcement agency), pursuant • Social Security benefits can find information about other free legal to authority to attach or seize assets of • Supplemental Security Income benefits aid programs at [insert ‘‘http:// noncustodial parents in financial institutions • Veterans benefits www.lawhelp.org’’ or other legal aid programs in the State of (name of State), 42 U.S.C. • Railroad retirement benefits website]. § 666]. • Railroad Unemployment Insurance (Optional section) How to contact [name of Accordingly, the garnishee is hereby benefits financial institution]. notified that the procedures established • Civil Service Retirement System benefits This notice contains all the information under 31 CFR Part 212 for identifying and • Federal Employees Retirement System that we have about the garnishment order. protecting Federal benefits deposited to benefits However, if you have a question about your accounts at financial institutions do not (Conditional section if funds have been account, you may contact us at [contact apply to this garnishment order. frozen) What should I do if I think that number]. The garnishee should comply with the additional funds in my account are from Appendix B to Part 212—Form of terms of this order, including instructions for Federal benefit payments? Notice of Right to Garnish Federal withholding and retaining any funds If you believe that additional funds in your Benefits deposited to any account(s) covered by this account(s) are from Federal benefit payments order, pending further order of [name of the and should not have been [frozen/removed], The United States, or a State child support court]/[the name of the State child support there are several things you can do. enforcement agency, certifying its right to enforcement agency].

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Appendix C to Part 212—Examples of period, the financial institution establishes on Tuesday, June 1. Since the $2,000 sum of the Lookback Period and Protected the protected amount at $1,000. the two benefit payments posted to the Amount Example 2: Three benefit payments during account during the lookback period is less lookback period. than the $3,000 balance in the account at the The following examples illustrate this A financial institution receives a open of business on the date of account definition of lookback period. garnishment order against an account holder review, notwithstanding the third Federal Example 1: Account review performed for $8,000 on December 2. The date of benefit payment posted on the date of same day garnishment order is served. account review is the same day, December 2, account review, the financial institution A financial institution receives when the opening balance in the account is establishes the protected amount at $2,000 garnishment order on Wednesday, March 17. $5,000. The lookback period begins on and places a hold on the remaining $1,000 The financial institution performs account December 1, the date preceding the date of in the account in accordance with State law. review the same day on Wednesday, March account review, and ends on October 1, the Example 5: Account co-owners with 17. The lookback period begins on Tuesday, corresponding date two months earlier. The benefit payments. March 16, the date preceding the date of account review shows that three Federal A financial institution receives a account review. The lookback period ends on benefit payments were deposited to the garnishment order against an account holder Saturday, January 16, the corresponding date account during the lookback period totaling for $3,800 on March 22. The date of account two months earlier. $4,500, one for $1,500 on December 1, review is the same day, March 22, when the Example 2: Account review performed the another for $1,500 on November 1, and a opening balance in the account is $7,000. day after garnishment order is served. third for $1,500 on October 1. Since the The lookback period begins on March 21, the A financial institution receives $4,500 sum of the three benefit payments date preceding the date of account review, garnishment order on Wednesday, November posted to the account during the lookback and ends on January 21, the corresponding 17. The financial institution performs period is less than the $5,000 balance in the date two months earlier. The account review account review next business day on account at the open of business on the date shows that four Federal benefit payments Thursday, November 18. The lookback of account review, the financial institution were deposited to the account during the period begins on Wednesday, November 17, establishes the protected amount at $4,500 lookback period totaling $7,000. Two of these the date preceding the date of account and seizes the remaining $500 in the account benefit payments, totaling $3,000, were made review. The lookback period ends on Friday, consistent with State law. to the account holder against whom the September 17, the corresponding date two Example 3: Intraday transactions. garnishment order was issued. The other two months earlier. A financial institution receives a payments, totaling $4,000, were made to a co- Example 3: No corresponding date two garnishment order against an account holder owner of the account. Since the financial months earlier. for $4,000 on Friday, September 10. The date institution must perform the account review A financial institution receives of account review is Monday, September 13, based only on the presence of benefit garnishment order on Tuesday, August 30. when the opening balance in the account is payments, without regard to the existence of The financial institution performs the $6,000. A cash withdrawal for $1,000 is co-owners on the account or payments to account review two business days later on processed after the open of business on multiple beneficiaries or under multiple Thursday, September 1. The lookback period September 13, but before the financial programs, the financial institution establishes begins on Wednesday, August 31, the date institution has performed the account review, the protected amount at $7,000, equal to the preceding the date of account review. The and the balance in the account is $5,000 sum of the four benefit payments posted to lookback period ends on Wednesday, June when the financial institution initiates an the account during the lookback period. 30, the last date of the month two months automated program to conduct the account Since $7,000 is also the balance in the earlier, since June 31 does not exist to review. The lookback period begins on account on the date of account review, there correspond with August 31. Sunday, September 12, the date preceding are no additional funds in the account which Example 4: Weekend between receipt of the date of account review, and ends on can be frozen. garnishment order and account review. Monday, July 12, the corresponding date two A financial institution receives months earlier. The account review shows Social Security Administration garnishment order on Friday, December 10. that two Federal benefit payments were 20 CFR Parts 404 and 416 The financial institution performs the deposited to the account during the lookback account review two business days later on period totaling $3,000, one for $1,500 on Authority and Issuance Tuesday, December 14. The lookback period Wednesday, July 21, and the other for $1,500 For the reasons set forth in the begins on Monday, December 13, the date on Wednesday, August 18. Since the $3,000 preamble, the Social Security preceding the date of account review. The sum of the two benefit payments posted to lookback period ends on Wednesday, the account during the lookback period is Administration amends Parts 404 and October 13, the corresponding date two less than the $6,000 balance in the account 416 of Title 20 of the Code of Federal months earlier. at the open of business on the date of account Regulations as follows: The following examples illustrate the review, the financial institution establishes definition of protected amount. the protected amount at $3,000 and, PART 404—FEDERAL OLD-AGE, Example 1: Account balance less than sum consistent with State law, freezes the $2,000 SURVIVORS AND DISABILITY of benefit payments. remaining in the account after the cash INSURANCE A financial institution receives a withdrawal. garnishment order against an account holder Example 4: Benefit payment on date of (1950– ) for $2,000 on May 20. The date of account account review. review is the same day, May 20, when the A financial institution receives a Subpart S—Payment Procedures opening balance in the account is $1,000. garnishment order against an account holder ■ The lookback period begins on May 19, the for $5,000 on Thursday, July 1. The date of 1. The authority citation for subpart S date preceding the date of account review, account review is the same day, July 1, when of Part 404 continues to read as follows: and ends on March 19, the corresponding the opening balance in the account is $3,000, Authority: Secs. 205(a) and (n), 207, date two months earlier. The account review and reflects a Federal benefit payment of 702(a)(5) and 708(a) of the Social Security shows that two Federal benefit payments $1,000 posted that day. The lookback period Act (42 U.S.C. 405(a) and (n), 407, 902(a)(5) were deposited to the account during the begins on Wednesday, June 30, the date and 909(a)). lookback period totaling $2,500, one for preceding the date of account review, and $1,250 on Friday, April 30 and one for $1,250 ends on Friday, April 30, the corresponding ■ 2. Add § 404.1821 to read as follows: on Tuesday, April 1. Since the $1,000 date two months earlier. The account review balance in the account at the open of shows that two Federal benefit payments § 404.1821 Garnishment of Payments After business on the date of account review is less were deposited to the account during the Disbursement. than the $2,500 sum of benefit payments lookback period totaling $2,000, one for (a) Payments that are covered by posted to the account during the lookback $1,000 on Friday, April 30 and one for $1,000 section 207 of the Social Security Act

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and made by direct deposit are subject CFR part 212, Garnishment of Accounts Sec. 831.201(g) also issued under Secs. 7(b) to 31 CFR part 212, Garnishment of Containing Federal Benefit Payments. and (e) of Pub. L. 105–274, 112 Stat. 2419; Accounts Containing Federal Benefit (b) This section may be amended only Sec. 831.201(i) also issued under Secs. 3 and Payments. by a rulemaking issued jointly by the 7(c) of Pub. L. 105–274, 112 Stat. 2419; Sec. (b) This section may be amended only Department of the Treasury and the 831.204 also issued under Sec. 102(e) of Pub. L. 104–8, 109 Stat. 102, as amended by Sec. by a rulemaking issued jointly by the agencies defined as a ‘‘benefit agency’’ in 153 of Pub. L. 104–134, 110 Stat. 1321; Sec. Department of Treasury and the 31 CFR 212.3. 831.205 also issued under Sec. 2207 of Pub. agencies defined as a ‘‘benefit agency’’ in Railroad Retirement Board L. 106–265, 114 Stat. 784; Sec. 831.206 also 31 CFR 212.3. issued under Sec. 1622(b) of Pub. L. 104–106, Authority and Issuance 110 Stat. 515; Sec. 831.301 also issued under PART 416—SUPPLEMENTAL Sec. 2203 of Pub. L. 106–265, 114 Stat. 780; SECURITY INCOME FOR THE AGED, For the reasons set forth in the Sec. 831.303 also issued under 5 U.S.C. BLIND, AND DISABLED preamble, the Railroad Retirement 8334(d)(2) and Sec. 2203 of Pub. L. 106–235, Board amends Part 350 of Title 20 of the 114 Stat. 780; Sec. 831.502 also issued under Subpart E—Payment of Benefits, Code of Federal Regulations as follows: 5 U.S.C. 8337; Sec. 831.502 also issued under Overpayments, and Underpayments Sec. 1(3), E.O. 11228, 3 CFR 1965–1965 PART 350—GARNISHMENT OF Comp. p. 317; Sec. 831.663 also issued under ■ 3. The authority citation for subpart E BENEFITS PAID UNDER THE Secs. 8339(j) and (k)(2); Secs. 831.663 and of part 416 continues to read as follows: RAILROAD RETIREMENT ACT, THE 831.664 also issued under Sec. 11004(c)(2) of RAILROAD UNEMPLOYMENT Pub. L. 103–66, 107 Stat. 412; Sec. 831.682 Authority: Secs. 702(a)(5), 1147, 1601, INSURANCE ACT, AND UNDER ANY also issued under Sec. 201(d) of Pub. L. 99– 1602, 1611(c) and (e), and 1631(a)–(d) and (g) 251, 100 Stat. 23; Sec. 831.912 also issued of the Social Security Act (42 U.S.C. OTHER ACT ADMINISTERED BY THE BOARD under Sec. 636 of Appendix C to Pub. L. 106– 902(a)(5), 1320b–17, 1381, 1381a, 1382(c) 554, 114 Stat. 2763A–164; Subpart V also and (e), and 1383(a)–(d) and (g)); 31 U.S.C. ■ 1. Revise the Authority citation to issued under 5 U.S.C. 8343a and Sec. 6001 3720A. of Pub. L. 100–203, 101 Stat. 1330–275; Sec. read as follows: 831.2203 also issued under Sec. 7001(a)(4) of ■ 4. Add § 416.534 to read as follows: Authority: 15 U.S.C. 1673(b)(2); 42 U.S.C. Pub. L. 101–508, 104 Stat. 1388–328. 659; and 45 U.S.C. 231f(b)(5), 231m, 352(e), § 416.534 Garnishment of Payments After ■ 2. Add a new § 831.115 to Subpart A Disbursement. and 362(l). to read as follows: (a) Payments that are covered by ■ 2. Add a new § 350.6 to read as section 1631(d)(1) of the Social Security follows: § 831.115 Garnishment of CSRS payments. Act and made by direct deposit are CSRS payments are not subject to subject to 31 CFR part 212, Garnishment § 350.6. Garnishment of payments after execution, levy, attachment, of Accounts Containing Federal Benefit disbursement. garnishment or other legal process Payments. Payments that are covered by 45 except as expressly provided by Federal (b) This section may be amended only U.S.C. 231m or 45 U.S.C. 352(e) and that law. are made by direct deposit are subject to by a rulemaking issued jointly by the ■ Department of Treasury and the 31 CFR part 212, Garnishment of 3. Add a new § 831.116 to read as agencies defined as a ‘‘benefit agency’’ in Accounts Containing Federal Benefit follows: 31 CFR 212.3. Payments. This section may be amended § 831.116 Garnishment of payments after only by a rulemaking issued jointly by Department of Veterans Affairs disbursement. the Department of the Treasury and the (a) Payments that are covered by 5 Authority and Issuance agencies defined as a ‘‘benefit agency’’ in U.S.C. 8346(a) and made by direct 31 CFR 212.3. For the reasons set forth in the deposit are subject to 31 CFR part 212, preamble, the Department of Veterans Office of Personnel Management Garnishment of Accounts Containing Affairs amends Part 1 of Title 38 of the Federal Benefit Payments. Authority and Issuance Code of Federal Regulations as follows: (b) This section may be amended only For the reasons set forth in the by a rulemaking issued jointly by the PART 1—GENERAL PROVISIONS preamble, the Office of Personnel Department of the Treasury and the Management amends part 831 and part agencies defined as a ‘‘benefit agency’’ in ■ 1. The authority citation for part 1 841 of Title 5 of the Code of Federal 31 CFR 212.3. continues to read as follows: Regulations 1 as follows: Authority: 38 U.S.C. 501(a), and as noted PART 841—FEDERAL EMPLOYEES in specific sections. PART 831— RETIREMENT RETIREMENT SYSTEM—GENERAL ADMINISTRATION ■ 2. Add § 1.1000 and a new ■ 1. The authority citation for part 831 undesignated center heading preceding is revised to read as follows: ■ 1. The authority citation for part 841 the section to read as follows: Authority: 5 U.S.C. 8347; Sec. 831.102 also is revised to read as follows: Procedures for Financial Institutions issued under 5 U.S.C. 8334; Sec. 831.106 also Authority: 5 U.S.C. 8461; Sec. 841.108 also Regarding Garnishment of Benefit issued under 5 U.S.C. 552a; Sec. 831.108 also issued under 5 U.S.C. 552a; Secs. 841.110 Payments After Disbursement issued under 5 U.S.C. 8336(d)(2); Sec. and 841.111 also issued under 5 U.S.C. 831.114 also issued under 5 U.S.C. 8470(a); subpart D also issued under 5 U.S.C. § 1.1000 Garnishment of payments after 8336(d)(2), and Sec. 1313(b)(5) of Pub. L. 8423; Sec. 841.504 also issued under 5 U.S.C. disbursement. 107–296, 116 Stat. 2135; Secs. 831.115 and 8422; Sec. 841.507 also issued under section 831.116 also issued under 5 U.S.C. 8346(a); 505 of Pub. L. 99–335; subpart J also issued (a) Payments of benefits due under Sec. 831.201(b)(1) also issued under 5 U.S.C. under 5 U.S.C. 8469; Sec. 841.506 also issued any law administered by the Secretary 8347(g); Sec. 831.201(b)(6) also issued under under 5 U.S.C. 7701(b)(2); Sec. 841.508 also that are protected by 38 U.S.C. 5301(a) 5 U.S.C. 7701(b)(2); Sec. 831.201(g) also issued under section 505 of Pub. L. 99–335; and made by direct deposit to a issued under Secs. 11202(f), 11232(e), and Sec. 841.604 also issued under Title II, Pub. financial institution are subject to 31 11246(b) of Pub. L. 105–33, 111 Stat. 251; L. 106–265, 114 Stat. 780.

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■ 2. Add new § 841.110 to read as DATES: This rule is effective on March the SBG Program in the Federal follows: 25, 2011. Register. See 75 FR 63419. SBA FOR FURTHER INFORMATION CONTACT: Ms. received comments from four submitters § 841.110 Garnishment of FERS payments. Barbara J. Brannan, Office of Surety before the comment period ended on FERS payments are not subject to Guarantees, 202–205–6545, e-mail: November 15, 2010 and from two execution, levy, attachment, [email protected]. submitters after the comment period garnishment or other legal process ended. SBA has considered all of the SUPPLEMENTARY INFORMATION: SBA except as expressly provided by Federal comments received. law. guarantees bonds for small contractors who cannot obtain surety bonds through Three submitters stated that small ■ 3. Add a new § 841.111 to read as the traditional commercial market. businesses have difficulty or are unable follows: SBA’s guarantee provides surety to obtain bonding to bid on timber sale companies with the incentive to bond contracts. They expressed support for § 841.111 Garnishment of payments after the proposed rule because it will enable disbursement. these contractors, enabling them to bid on and be awarded more contracts. The small contractors to obtain bonding (a) Payments that are covered by 5 Surety Bond Guarantee (SBG) Program more easily, making it possible for them U.S.C. 8470(a) and made by direct consists of the Prior Approval Program to bid against larger companies and deposit are subject to 31 CFR part 212, and the Preferred Surety Bond (PSB) compete for timber sale contracts. Garnishment of Accounts Containing Program. In the Prior Approval Program, One submitter expressed concern that Federal Benefit Payments. each bond guarantee application must the fee assessed by SBA on the Principal (b) This section may be amended only be submitted to SBA individually for for the bond may make it difficult or by a rulemaking issued jointly by the approval, while PSB sureties have the economically unfeasible for them to Department of the Treasury and the delegated authority to issue, monitor, obtain timber sale contracts. SBA agencies defined as a ‘‘benefit agency’’ in and service bonds without SBA’s prior periodically reviews the program fees 31 CFR part 212. approval. charged, which are established in the By the Department of the Treasury. The Forest Service of the U.S. amounts SBA deems reasonable and Dated: February 3, 2011. Department of Agriculture (USDA), and necessary, in accordance with § 411(h) of the Small Business Investment Act of Richard L. Gregg, other public and private entities that 1958. Fiscal Assistant Secretary. manage forests, may permit the harvesting of timber in exchange for the One submitter suggested that SBA By the Social Security Administration. payment of an agreed upon sum of paperwork requirements, specifically Michael J. Astrue, money. To bid on these timber sale the submission of SBA Form 990, Surety Commissioner of Social Security. contracts, the USDA and these other Bond Guarantee Agreement, with each Dated: January 31, 2011. public and private entities may require bond could be cumbersome for timber sale bonds. However, SBA is not By the Department of Veterans Affairs. the bidder to obtain a bond to ensure requiring any additional paperwork for John R. Gingrich, satisfactory compliance with the contract terms and conditions timber sale bonds, and electronic Chief of Staff. associated with forest management, application submission and processing By the Railroad Retirement Board. such as the protection of natural is available in the Prior Approval Beatrice Ezerski, resources, soil, water, erosion control Program. In addition, PSB sureties do Secretary to the Board. and road maintenance. Unlike the not have to submit SBA Form 990 for typical contract for supplies or services any bond. The same submitter suggested By the Office of Personnel Management. where the Obligee pays the Principal for that there is limited access to John Berry, providing supplies or rendering participating sureties in rural areas. SBA Director. services, the Principal in the timber sale admitted six new sureties to the [FR Doc. 2011–3782 Filed 2–22–11; 8:45 am] contract (the harvester of the timber) program in fiscal year 2010 and is BILLING CODE 4810–25–P pays the Obligee (e.g. the Federal working to expand access to the Government) for the right to cut the program. designated trees. However, under the Lastly, one submitter suggested that SMALL BUSINESS ADMINISTRATION current definition of ‘‘Contract’’ in 13 SBA clarify its intent to exclude CFR 115.10, a contract for which SBA payment bonds from eligibility by 13 CFR Part 115 may issue a Surety Bond Guarantee changing the definition of Payment cannot include a contract requiring any Bond. SBA agrees that payment bonds RIN 3245–AG14 payment by the Principal to the Obligee. in connection with timber sale contracts Surety Bond Guarantee Program; This final rule amends the definition of should be excluded, as the guarantee on Timber Sales ‘‘Contract’’ to permit SBA to issue bid or payment bonds under the SBG Program performance bond guarantees for was not intended to reimburse the AGENCY: U.S. Small Business contracts that require the Principal to Obligee for amounts owed the Obligee Administration. pay the Obligee for harvesting timber or by the Principal, but to cover the claims ACTION: Final rule. other forest products, such as biomass. caused by the Principal’s failure to pay This change applies to contracts others furnishing supplies and materials SUMMARY: The Small Business involving forests managed by the U.S. for use in the performance of the Administration (SBA) is issuing this Forest Service as well as other public Contract. SBA has added language to the final rule to amend its Surety Bond and private entities. rule to make it clear that the exception Guarantee Program rules to guarantee for timber sale contracts applies only to bid and performance bonds for timber Discussion of Public Comments bid and performance bonds. Bid bonds sale contracts awarded by the Federal On October 15, 2010, SBA published are included because a small contractor Government or other public and private the notice of proposed rulemaking with may be required to submit a bid bond landowners. request for comments on this change to with its bid for the timber sale contract.

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The two comments that were received the agency must prepare a regulatory DEPARTMENT OF TRANSPORTATION after the deadline have also been flexibility analysis which describes the considered by SBA. Both submitters impact of the rule on small entities. Federal Aviation Administration suggested that the regulation be However, section 605 of the RFA allows amended to include contracts for the an agency to certify a rule, in lieu of 14 CFR Part 39 sale of biomass products to increase the preparing an analysis, if the rulemaking [Docket No. FAA–2010–0892; Directorate number of contracts for which small is not expected to have a significant Identifier 2010–NE–32–AD; Amendment 39– businesses could obtain bonding. SBA economic impact on a substantial 16615; AD 2011–05–06] agrees and has modified the definition number of small entities. Within the ‘‘ ’’ RIN 2120–AA64 of Contract in this final rule to clarify meaning of RFA, SBA certifies that this that this change applies to contracts for rule will not have a significant Airworthiness Directives; Thielert the sale of timber as well as other forest Aircraft Engines GmbH Models TAE products, including biomass. economic impact on a substantial number of small entities. There are 125–02–99 and TAE 125–02–114 Compliance With Executive Orders seventeen Sureties that participate in Reciprocating Engines 12866, 12988, and 13132, the the SBA program, and no part of this Paperwork Reduction Act (44 U.S.C. Ch. AGENCY: Federal Aviation final rule would impose any significant Administration (FAA), DOT. 35) and the Regulatory Flexibility Act (5 additional cost or burden on them. U.S.C. 601–612) ACTION: Final rule. List of Subjects in 13 CFR Part 115 Executive Order 12866 SUMMARY: We are adopting a new The Office of Management and Budget Claims, Small businesses, Surety airworthiness directive (AD) for the (OMB) has determined that this rule bonds. products listed above. This AD results from mandatory continuing does not constitute a significant For the reasons stated in the regulatory action under Executive Order airworthiness information (MCAI) preamble, the Small Business 12866. This rule is also not a major rule issued by an aviation authority of Administration amends 13 CFR Part 115 under the Congressional Review Act. another country to identify and correct as follows: an unsafe condition on an aviation Executive Order 12988 product. The MCAI describes the unsafe This action meets applicable PART 115—SURETY BOND condition as: GUARANTEE standards set forth in Sections 3(a) and Service experience has shown that fracture 3(b)(2) of Executive Order 12988, Civil of the timing chain has occurred due to chain ■ Justice Reform, to minimize litigation, 1. The authority citation for part 115 wear. This condition, if not corrected, could eliminate ambiguity, and reduce continues to read as follows: lead to in-flight cases of engine shutdown. burden. The action does not have Authority: 5 U.S.C. app. 3, 15 U.S.C. 687b, We are issuing this AD to prevent retroactive or preemptive effect. 687c, 694b, 694b note, Pub. L. 106–554; and engine in-flight shutdown leading to Executive Order 13132 Pub. L. 108–447, Div. K, Sec. 203. loss of control of the airplane by requiring life limits for the timing chain. For purposes of Executive Order ■ 2. Amend § 115.10 by revising the DATES: This AD becomes effective 13132, SBA has determined that this third sentence of the definition of March 30, 2011. final rule will not have substantial, ‘‘Contract’’ to read as follows. direct effects on the States, on the ADDRESSES: The Docket Operations relationship between the national § 115.10 Definitions. office is located at Docket Management government and the States, or on the * * * * * Facility, U.S. Department of distribution of power and Transportation, 1200 New Jersey responsibilities among the various Contract * * * A contract does not Avenue, SE., West Building Ground levels of government. Therefore, for the include a permit, subdivision contract, Floor, Room W12–140, Washington, DC purpose of Executive Order 13132, lease, land contract, evidence of debt, 20590–0001. financial guarantee (e.g., a contract Federalism, SBA has determined that FOR FURTHER INFORMATION CONTACT: this final rule has no federalism requiring any payment by the Principal Alan Strom, Aerospace Engineer, Engine implications warranting preparation of a to the Obligee, except for contracts in Certification Office, FAA, Engine & federalism assessment. connection with bid and performance Propeller Directorate, 12 New England bonds for the sale of timber and/or other Paperwork Reduction Act, 44 U.S.C., Executive Park, Burlington, MA 01803; Ch. 35 forest products, such as biomass, that e-mail: [email protected]; telephone require the Principal to pay the (781) 238–7143; fax (781) 238–7199. SBA has determined that this final Obligee), warranty of performance or SUPPLEMENTARY INFORMATION: rule does not impose additional efficiency, warranty of fidelity, or reporting or recordkeeping requirements release of lien (other than for claims Discussion under the Paperwork Reduction Act, 44 under a guaranteed bond). * * * U.S.C., Chapter 35. We issued a notice of proposed * * * * * rulemaking (NPRM) to amend 14 CFR Regulatory Flexibility Act, 5 U.S.C. 601– part 39 to include an AD that would 612 Karen G. Mills, apply to the specified products. That The Regulatory Flexibility Act (RFA), Administrator. NPRM was published in the Federal 5 U.S.C. 601, requires administrative [FR Doc. 2011–4010 Filed 2–22–11; 8:45 am] Register on October 28, 2010 (75 FR agencies to consider the effect of their BILLING CODE 8025–01–P 66342). That NPRM proposed to correct actions on small entities, small non- an unsafe condition for the specified profit enterprises, and small local products. The MCAI states: governments. Pursuant to the RFA, Service experience has shown that fracture when an agency issues a rulemaking, of the timing chain has occurred due to chain

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wear. This condition, if not corrected, could 3. Will not have a significant Reason lead to in-flight cases of engine shutdown. economic impact, positive or negative, (d) This AD results from mandatory Comments on a substantial number of small entities continuing airworthiness information (MCAI) under the criteria of the Regulatory issued by an aviation authority of another We gave the public the opportunity to Flexibility Act. country to identify and correct an unsafe participate in developing this AD. We condition on an aviation product. The MCAI We prepared a regulatory evaluation received no comments on the NPRM. describes the unsafe condition as: of the estimated costs to comply with Service experience has shown that fracture Conclusion this AD and placed it in the AD docket. of the timing chain has occurred due to chain We reviewed the relevant data and Examining the AD Docket wear. This condition, if not corrected, could determined that air safety and the lead to in-flight cases of engine shutdown. You may examine the AD docket on We are issuing this AD to prevent engine public interest require adopting the AD in-flight shutdown leading to loss of control as proposed. the Internet at http:// www.regulations.gov; or in person at the of the airplane by requiring life limits for the timing chain. Costs of Compliance Docket Operations office between 9 a.m. Based on the service information, we and 5 p.m., Monday through Friday, Actions and Compliance estimate that this AD will affect about except Federal holidays. The AD docket (e) Unless already done, do the following 112 engines installed on airplanes of contains this AD, the regulatory actions. U.S. registry. We also estimate that it evaluation, any comments received, and Initial Replacement of Timing Chain will take about 8 work-hours per other information. The street address for the Docket Operations office (phone (1) For engines with serial numbers (S/Ns) product to comply with this AD. The listed in Table 1 of this AD, replace the average labor rate is $85 per work-hour. (800) 647–5527) is provided in the timing chain within 600 flight hours-since- Required parts will cost about $162 per ADDRESSES section. Comments will be new, or no later than 55 flight hours after the engine. Based on these figures, we available in the AD docket shortly after effective date of this AD, whichever occurs estimate the cost of the AD on U.S. receipt. later. operators to be $94,304. List of Subjects in 14 CFR Part 39 TABLE 1—S/NSOFENGINES AF- Authority for This Rulemaking Air transportation, Aircraft, Aviation FECTED BY THE COMPLIANCE TIME IN Title 49 of the United States Code safety, Safety. PARAGRAPH (E)(1) OF THIS AD specifies the FAA’s authority to issue Adoption of the Amendment rules on aviation safety. Subtitle I, 02–02–01510 to 02–02–01514 inclusive section 106, describes the authority of Accordingly, under the authority 02–02–01518 to 02–02–01520 inclusive the FAA Administrator. ‘‘Subtitle VII: delegated to me by the Administrator, 02–02–01529 Aviation Programs,’’ describes in more the FAA amends 14 CFR part 39 as 02–02–01717 detail the scope of the Agency’s follows: 02–02–01718 authority. 02–02–01720 We are issuing this rulemaking under PART 39—AIRWORTHINESS 02–02–01721 DIRECTIVES 02–02–01727 the authority described in ‘‘Subtitle VII, 02–02–01728 Part A, Subpart III, Section 44701: 02–02–01730 to 02–02–01733 inclusive ■ General requirements.’’ Under that 1. The authority citation for part 39 02–02–01739 to 02–02–01752 inclusive section, Congress charges the FAA with continues to read as follows: promoting safe flight of civil aircraft in Authority: 49 U.S.C. 106(g), 40113, 44701. (2) For engines with S/Ns not listed in air commerce by prescribing regulations Table 1 of this AD, replace the timing chain for practices, methods, and procedures § 39.13 [Amended] within 910 flight hours-since-new, or no later the Administrator finds necessary for ■ than 55 flight hours after the effective date 2. The FAA amends § 39.13 by adding of this AD, whichever occurs later. safety in air commerce. This regulation the following new AD: is within the scope of that authority Repetitive Replacements of Timing Chains because it addresses an unsafe condition 2011–05–06 Thielert Aircraft Engines for All TAE 125–02–99 and TAE 125–02–114 GmbH: Amendment 39–16615. Docket Engines that is likely to exist or develop on No. FAA–2010–0892; Directorate products identified in this rulemaking Identifier 2010–NE–32–AD. (3) Thereafter, for all TAE 125–02–99 and action. TAE 125–02–114 engines, repetitively Effective Date replace the timing chain within every Regulatory Findings (a) This airworthiness directive (AD) additional 910 flight hours. We determined that this AD will not becomes effective March 30, 2011. (4) Guidance on replacing the timing chain can be found in Thielert Aircraft Engines have federalism implications under Affected ADs Executive Order 13132. This AD will GmbH Service Bulletin No. TM TAE 125– (b) None. 1010 P1, Revision 2, dated May 26, 2010. not have a substantial direct effect on the States, on the relationship between Applicability FAA AD Differences the national government and the States, (c) This AD applies to Thielert Aircraft (f) This AD differs from the MCAI and/or or on the distribution of power and Engines GmbH models TAE 125–02–99 and service information, which require initial responsibilities among the various TAE 125–02–114 reciprocating engines replacement of the timing chain for the levels of government. installed in, but not limited to, Cessna 172 engines listed in paragraph (e)(1) above For the reasons discussed above, I and (Reims-built) F172 series (European within either the next 110 flight hours or at certify this AD: Aviation Safety Agency (EASA) the next maintenance, whichever occurs first, for those engines having accumulated ‘‘ Supplemental Type Certificate (STC) No. 1. Is not a significant regulatory EASA.A.S.01527); Piper PA–28 series (EASA between 500 and 600 flight hours time-since- action’’ under Executive Order 12866; STC No. EASA.A.S. 01632); APEX (Robin) new. The reason for the difference is to 2. Is not a ‘‘significant rule’’ under the DR 400 series (EASA STC No. A.S.01380); ensure that the compliance requirements for DOT Regulatory Policies and Procedures and Diamond Aircraft Industries Models DA all engines in paragraph (e)(1) above are (44 FR 11034, February 26, 1979); and 40, DA 42, and DA 42M NG airplanes. consistent.

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Alternative Methods of Compliance action under title 1, Code of Federal procedures and air navigation, it is (AMOCs) Regulations, part 51, subject to the certified that this rule, when (g) The Manager, Engine Certification annual revision of FAA Order 7400.9 promulgated, will not have a significant Office, FAA, has the authority to approve and publication of conforming economic impact on a substantial AMOCs for this AD, if requested using the amendments. number of small entities under the procedures found in 14 CFR 39.19. FOR FURTHER INFORMATION CONTACT: criteria of the Regulatory Flexibility Act. Related Information Richard Horrocks, Operations Support The FAA’s authority to issue rules regarding aviation safety is found in (h) Refer to MCAI European Aviation Group, Eastern Service Center, Federal Safety Agency AD 2010–0136, dated June 30, Aviation Administration, P. O. Box Title 49 of the United States Code. 2010, and Thielert Aircraft Engines GmbH 20636, Atlanta, Georgia 30320; Subtitle I, section 106 describes the Service Bulletin No. TM TAE 125–1010 P1, telephone (404) 305–5588. authority of the FAA Administrator. Revision 2, dated May 26, 2010, for related Subtitle VII, Aviation Programs, information. Contact Thielert Aircraft SUPPLEMENTARY INFORMATION: describes in more detail the scope of the Engines GmbH, Platanenstrasse 14 D–09350, History agency’s authority. Lichtenstein, Germany, telephone: +49– This rulemaking is promulgated On October 22, 2010, the FAA 37204–696–0; fax: +49–37204–696–55; e- under the authority described in subtitle mail: [email protected], for a copy published in the Federal Register a VII, part A, subpart I, section 40103. of this service information. notice of proposed rulemaking to amend Under that section, the FAA is charged (i) Contact Alan Strom, Aerospace Class E surface airspace and airspace with prescribing regulations to assign Engineer, Engine Certification Office, FAA, 700 feet above the surface, and remove the use of airspace necessary to ensure Engine & Propeller Directorate, 12 New Class E airspace designated as an England Executive Park, Burlington, MA the safety of aircraft and the efficient extension to Class D airspace at Easton, 01803; e-mail: [email protected]; telephone use of airspace. This regulation is MD (75 FR 65250) Docket No. FAA– (781) 238–7143; fax (781) 238–7199, for more within the scope of that authority as it 2010–0936. Interested parties were information about this AD. amends Class E airspace at Easton, MD. invited to participate in this rulemaking Material Incorporated by Reference effort by submitting written comments Lists of Subjects in 14 CFR Part 71 (j) None. on the proposal to the FAA. No Airspace, Incorporation by reference, Issued in Burlington, Massachusetts, on comments were received. Class E Navigation (Air). February 16, 2011. airspace designations are published in Peter A. White, paragraph 6005 of FAA Order 7400.9U Adoption of the Amendment Acting Manager, Engine and Propeller dated August 18, 2010, and effective In consideration of the foregoing, the Directorate, Aircraft Certification Service. September 15, 2010, which is Federal Aviation Administration [FR Doc. 2011–3917 Filed 2–22–11; 8:45 am] incorporated by reference in 14 CFR amends 14 CFR part 71 as follows: BILLING CODE 4910–13–P 71.1. The Class E airspace designations listed in this document will be PART 71—DESIGNATION OF CLASS A, published subsequently in the Order. B, C, D AND E AIRSPACE AREAS; AIR DEPARTMENT OF TRANSPORTATION TRAFFIC SERVICE ROUTES; AND The Rule REPORTING POINTS Federal Aviation Administration This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 ■ 1. The authority citation for part 71 14 CFR Part 71 amends the Class E surface airspace and continues to read as follows: Class E airspace extending upward from Authority: 49 U.S.C. 106(g); 40103, 40113, [Docket No. FAA–2010–0936; Airspace 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Docket No. 10–AEA–23] 700 feet above the surface to accommodate new SIAPs developed for 1963 Comp., p. 389. Amendment of Class E Airspace and Easton Airport/Newnam Field, Easton, § 71.1 [Amended] Revocation of Class E Airspace; MD, as the Easton NDB has been ■ 2. The incorporation by reference in Easton, MD decommissioned. This eliminates the need for Class E airspace designated as 14 CFR 71.1 of Federal Aviation AGENCY: Federal Aviation an extension to Class D surface area, Administration Order 7400.9U, Administration (FAA), DOT. and, therefore, will be removed for the Airspace Designations and Reporting ACTION: Final rule. continued safety and management of Points, dated August 18, 2010, effective IFR operations at the airport. September 15, 2010, is amended as SUMMARY: This action amends Class E The FAA has determined that this follows: surface airspace and airspace 700 feet regulation only involves an established Paragraph 6002 Class E Airspace above the surface, and removes Class E body of technical regulations for which Designated as Surface Areas. airspace designated as an extension to frequent and routine amendments are * * * * * Class D airspace at Easton, MD. The necessary to keep them operationally AEA MD E2 Easton, MD [AMENDED] Easton Non-Directional Beacon (NDB) current, is non-controversial and has been decommissioned and new Easton Airport/Newnam Field, MD unlikely to result in adverse or negative ° ′ ″ ° ′ ″ Standard Instrument Approach comments. It, therefore, (1) Is not a (Lat. 38 48 15 N., long. 76 04 08 W.) Procedures (SIAPs) have been ‘‘significant regulatory action’’ under That airspace extending upward from the developed for Easton Airport/Newnam Executive Order 12866; (2) is not a surface to and including 2,600 feet MSL Field. This action enhances the safety within a 4.0-mile radius of the Easton ‘‘significant rule’’ under DOT Regulatory Airport/Newnam Field. This Class E airspace and airspace management of Instrument Policies and Procedures (44 FR 11034; Flight Rules (IFR) operations at the area is effective during the specific dates and February 26, 1979); and (3) does not times established in advance by a Notice to airport. warrant preparation of a Regulatory Airmen. The effective date and time will DATES: Effective 0901 UTC, May 5, 2011. Evaluation as the anticipated impact is thereafter be continuously published in the The Director of the Federal Register so minimal. Since this is a routine Airport/Facility Directory. approves this incorporation by reference matter that will only affect air traffic * * * * *

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Paragraph 6004 Class E Airspace Areas History the safety of aircraft and the efficient Designated as an Extension to a Class D use of airspace. This regulation is Surface Area. On October 22, 2010, the FAA published in the Federal Register a within the scope of that authority as it * * * * * notice of proposed rulemaking to amend amends Class E airspace at Charleston, AEA MD E4 Easton, MD [REMOVED] Class E airspace to accommodate new WV. * * * * * SIAPs at Yeager Airport, Charleston, Lists of Subjects in 14 CFR Part 71 WV (75 FR 65251). Interested parties Paragraph 6005 Class E Airspace Areas Extending Upward from 700 feet or More were invited to participate in this Airspace, Incorporation by reference, Above the Surface of the Earth. rulemaking effort by submitting written Navigation (Air). comments on the proposal to the FAA. * * * * * No comments were received. Class E Adoption of the Amendment AEA MD E5 Easton, MD [AMENDED] airspace designations are published in In consideration of the foregoing, the paragraph 6005 of FAA Order 7400.9U Easton Airport/Newnam Field, MD Federal Aviation Administration (Lat. 38°48′15″ N., long. 76°04′08″ W.) dated August 18, 2010, and effective amends 14 CFR Part 71 as follows: That airspace extending upward from 700 September 15, 2010, which is feet above the surface of the Earth within a incorporated by reference in 14 CFR PART 71—DESIGNATION OF CLASS A, 6.5-mile radius of the Easton Airport/ 71.1. The Class E airspace designations B, C, D AND E AIRSPACE AREAS; AIR Newnam Field. listed in this document will be TRAFFIC SERVICE ROUTES; AND published subsequently in the Order. Issued in College Park, Georgia, on REPORTING POINTS February 11, 2011. The Rule Mark D. Ward, This amendment to Title 14, Code of ■ 1. The authority citation for part 71 Manager, Operations Support Group, Eastern continues to read as follows: Service Center, Air Traffic Organization. Federal Regulations (14 CFR) part 71 [FR Doc. 2011–3940 Filed 2–22–11; 8:45 am] amends Class E airspace extending Authority: 49 U.S.C. 106(g); 40103, 40113, upward from 700 feet above the surface BILLING CODE 4910–13–P 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– at Charleston, WV, to accommodate new 1963 Comp., p. 389. standard instrument approach DEPARTMENT OF TRANSPORTATION procedures developed at Yeager Airport. § 71.1 [Amended] This action is necessary for the safety ■ 2. The incorporation by reference in Federal Aviation Administration and management of IFR operations at the airports. 14 CFR 71.1 of Federal Aviation 14 CFR Part 71 The FAA has determined that this Administration Order 7400.9U, regulation only involves an established Airspace Designations and Reporting body of technical regulations for which Points, dated August 18, 2010, effective [Docket No. FAA–2010–1010; Airspace September 15, 2010, is amended as Docket No. 10–AEA–24] frequent and routine amendments are necessary to keep them operationally follows: Amendment of Class E Airspace; current, is non-controversial and Paragraph 6005 Class E Airspace Areas Charleston, WV unlikely to result in adverse or negative Extending Upward from 700 feet or More comments. It, therefore, (1) Is not a Above the Surface of the Earth. AGENCY: Federal Aviation ‘‘ ’’ significant regulatory action under * * * * * Administration (FAA), DOT. Executive Order 12866; (2) is not a ACTION: Final rule. ‘‘significant rule’’ under DOT Regulatory AEA WV E5 Charleston, WV [AMENDED] Policies and Procedures (44 FR 11034; Yeager Airport, WV SUMMARY: This action amends Class E February 26, 1979); and (3) does not (Lat. 38° 22′ 23″ N., long. 81° 35′ 35″ W.) Airspace at Charleston, WV, to warrant preparation of a Regulatory That airspace extending upward from 700 accommodate the additional airspace Evaluation as the anticipated impact is feet above the surface within a 7-mile radius needed for new Standard Instrument so minimal. Since this is a routine of Yeager Airport and within 8 miles Approach Procedures (SIAPs) matter that will only affect air traffic northwest and 4 miles southeast of the 048° developed at Yeager Airport. This action procedures and air navigation, it is bearing from the airport extending from the enhances the safety and airspace certified that this rule, when 7-mile radius to 21.2 miles northeast of the management of Instrument Flight Rules promulgated, will not have a significant airport. (IFR) operations at the airport. economic impact on a substantial Issued in College Park, Georgia, on DATES: number of small entities under the Effective 0901 UTC, May 5, 2011. February 3, 2011. The Director of the Federal Register criteria of the Regulatory Flexibility Act. approves this incorporation by reference The FAA’s authority to issue rules Mark D. Ward, action under title 1, Code of Federal regarding aviation safety is found in Manager, Operations Support Group, Eastern Regulations, part 51, subject to the Title 49 of the United States Code. Service Center, Air Traffic Organization. annual revision of FAA Order 7400.9 Subtitle I, section 106 describes the [FR Doc. 2011–3939 Filed 2–22–11; 8:45 am] and publication of conforming authority of the FAA Administrator. BILLING CODE 4910–13–P amendments. Subtitle VII, Aviation Programs, describes in more detail the scope of the FOR FURTHER INFORMATION CONTACT: agency’s authority. Richard Horrocks, Operations Support This rulemaking is promulgated Group, Eastern Service Center, Federal under the authority described in subtitle Aviation Administration, P. O. Box VII, part A, subpart I, section 40103. 20636, Atlanta, Georgia 30320; Under that section, the FAA is charged telephone (404) 305–5588. with prescribing regulations to assign SUPPLEMENTARY INFORMATION: the use of airspace necessary to ensure

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DEPARTMENT OF TRANSPORTATION Issued in College Park, Georgia, on airspace designations listed in this February 11, 2011. document will be published Federal Aviation Administration Mark D. Ward, subsequently in the Order. Manager, Operations Support Group, Eastern The Rule 14 CFR Part 71 Service Center, Air Traffic Organization. [FR Doc. 2011–3944 Filed 2–22–11; 8:45 am] This amendment to Title 14, Code of [Docket No. FAA–2010–0937; Airspace BILLING CODE 4910–13–P Federal Regulations (14 CFR) part 71 Docket No. 10–ASO–35] removes the Class E surface airspace as an extension to Class D airspace and Amendment of Class E Airspace; DEPARTMENT OF TRANSPORTATION amends the description of the Class E Henderson, KY airspace extending upward 700 feet Federal Aviation Administration above the surface at Oxford-Waterbury AGENCY: Federal Aviation Airport, Oxford, CT. The Waterbury 14 CFR Part 71 Administration (FAA), DOT. NDB has been decommissioned and [Docket No. FAA–2010–0815; Airspace reference to the navigation aid is being ACTION: Final rule; correction. Docket No. 10–ANE–107] removed from the airspace description for the safety and management of IFR SUMMARY: This action corrects errors in Removal and Amendment of Class E operations at Waterbury-Oxford Airport. the legal description of a final rule Airspace, Oxford, CT The FAA has determined that this published in the Federal Register on AGENCY: Federal Aviation proposed regulation only involves an December 20, 2010 that amends Class E Administration (FAA), DOT. established body of technical airspace at Henderson, KY. regulations for which frequent and ACTION: Final rule. DATES: Effective 0901 UTC, March 10, routine amendments are necessary to 2011. SUMMARY: This action removes Class E keep them operationally current. It surface airspace as an extension to Class therefore, (1) Is not a ‘‘significant FOR FURTHER INFORMATION CONTACT: D airspace, and amends Class E airspace regulatory action’’ under Executive Richard Horrocks, Operations Support extending upward from 700 feet at Order 12866; (2) is not a ‘‘significant Group, Eastern Service Center, Federal Oxford, CT. Decommissioning of the rule’’ under DOT Regulatory Policies Aviation Administration, P. O. Box Waterbury Non-Directional Beacon and Procedures (44 FR 11034; February 20636, Atlanta, Georgia 30320; (NDB) at the Waterbury-Oxford airport 26, 1979); and (3) does not warrant telephone (404) 305–5588. has made this action necessary for the preparation of a Regulatory Evaluation safety and management of Instrument as the anticipated impact is so minimal. SUPPLEMENTARY INFORMATION: Flight Rules (IFR) operations at the Since this is a routine matter that will only affect air traffic procedures and air History airport. navigation, it is certified that this DATES: Effective 0901 UTC, May 5, 2011. Federal Register Docket No. FAA– proposed rule, when promulgated, The Director of the Federal Register 2010–0937, Airspace Docket No. 10– would not have a significant economic approves this incorporation by reference impact on a substantial number of small ASO–35, published on December 20, action under title 1, Code of Federal 2010 (75 FR 79294), amends Class E entities under the criteria of the Regulations, part 51, subject to the Regulatory Flexibility Act. airspace at Henderson City-County annual revision of FAA order 7400.9 The FAA’s authority to issue rules Airport, Henderson, KY. A and publication of conforming regarding aviation safety is found in typographical error was made in the amendments. regulatory text concerning the degree Title 49 of the United States Code. FOR FURTHER INFORMATION CONTACT: radial used; reference to the Pocket City Subtitle I, section 106 describes the Richard Horrocks, Operations Support VORTAC, Evansville, IN, will be authority of the FAA Administrator. Group, Eastern Service Center, Federal Subtitle VII, Aviation Programs, removed; and the direction of the Aviation Administration, P.O. Box describes in more detail the scope of the airspace extension corrected. This 20636, Atlanta, Georgia 30320; agency’s authority. This proposed action will correct these errors. The telephone (404) 305–5588. rulemaking is promulgated under the airspace designation and regulatory text SUPPLEMENTARY INFORMATION: authority described in subtitle VII, part, will be rewritten for clarity. A, subpart I, section 40103. Under that History Correction to Final Rule section, the FAA is charged with On August 26, 2010, the FAA prescribing regulations to assign the use Accordingly, pursuant to the published in the Federal Register a of airspace necessary to ensure the authority delegated to me, on page notice of proposed rulemaking to safety of aircraft and the efficient use of 79294, column 3, line 62, the remove and amend Class E airspace at airspace. This proposed regulation is description is corrected to read: Waterbury-Oxford Airport, Oxford, CT within the scope of that authority as it (75 FR 52484). Interested parties were would amend controlled airspace at ASO KY E5 Henderson, KY [Corrected] invited to participate in this rulemaking Waterbury-Oxford Airport, Oxford, CT. Henderson City-County Airport, KY effort by submitting written comments Lists of Subjects in 14 CFR Part 71 (Lat. 37°48′ 28″ N., long. 87°41′ 09″ W.) on the proposal to the FAA. No That airspace extending upward from 700 comments were received. Class E Airspace, Incorporation by reference, feet above the surface within a 6.5-mile airspace designations are published in Navigation (Air). radius of the Henderson City-County Airport Paragraph 6004 and 6005, respectively, Adoption of the Amendment and within 1.0 miles each side of the 333° of FAA order 7400.9U, signed August bearing extending from the 6.5-mile radius of 18, 2010, and effective September 15, In consideration of the foregoing, the the Henderson City-County Airport to 8.2 2010, which is incorporated by Federal Aviation Administration miles northwest of the airport. reference in 14 CFR 71.1. The Class E amends 14 CFR part 71 as follows:

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PART 71—DESIGNATION OF CLASS A, deviation allows the bridge to remain operating schedule immediately at the B, C, D, AND CLASS E AIRSPACE closed for eight hours on March 8, 2011. end of the designated time period. This AREAS; AIR TRAFFIC SERVICE DATES: This deviation is effective from deviation from the operating regulations ROUTES; AND REPORTING POINTS 7 a.m. until 3 p.m. on Tuesday, March is authorized under 33 CFR 117.35. 8, 2011. Dated: February 9, 2011. ■ 1. The authority citation for part 71 ADDRESSES: Documents mentioned in David M. Frank, continues to read as follows: this preamble as being available in the Bridge Administrator. Authority: 49 U.S.C. 106(g); 40103, 40113, docket are part of docket USCG–2011– [FR Doc. 2011–3955 Filed 2–22–11; 8:45 am] 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 0084 and are available online by going BILLING CODE 9110–04–P 1963 Comp., p. 389. to http://www.regulations.gov, inserting § 71.1 [Amended] USCG–2011–0084 in the ‘‘Keyword’’ box and then clicking ‘‘Search’’. They are ■ 2. The incorporation by reference in DEPARTMENT OF HEALTH AND also available for inspection or copying 14 CFR 71.1 of Federal Aviation HUMAN SERVICES at the Docket Management Facility (M– Administration Order 7400.9U, 30), U.S. Department of Transportation, Airspace Designations and Reporting 45 CFR Part 88 West Building Ground Floor, Room Points, signed August 18, 2010, effective W12–140, 1200 New Jersey Avenue SE., RIN 0991–AB76 September 15, 2010, is amended as Washington, DC 20590, between 9 a.m. follows: Regulation for the Enforcement of and 5 p.m., Monday through Friday, Federal Health Care Provider Paragraph 6004 Class E Airspace Areas except Federal holidays. Designated as an Extension to a Class D Conscience Protection Laws FOR FURTHER INFORMATION CONTACT: Surface Area If you have questions on this rule, call or AGENCY: Office of the Secretary, HHS. * * * * * e-mail David Frank, Bridge ACTION: Final rule. ANE CT E4 Oxford, CT [REMOVED] Administration Branch; telephone 504– SUMMARY: The Department of Health and 671–2128, e-mail * * * * * Human Services issues this final rule [email protected]. If you have which provides that enforcement of the Paragraph 6005 Class E Airspace Areas questions on viewing the docket, call Extending Upward from 700 Feet or More federal statutory health care provider Renee V. Wright, Program Manager, Above the Surface of the Earth. conscience protections will be handled Docket Operations, telephone 202–366– * * * * * by the Department’s Office for Civil 9826. Rights, in conjunction with the ANE CT E5 Oxford, CT [AMENDED] SUPPLEMENTARY INFORMATION: CSX Department’s funding components. This Waterbury-Oxford Airport, CT Transportation requested a temporary ° ′ ″ ° ′ ″ Final Rule rescinds, in part, and revises, (Lat. 41 28 43 N., long. 73 08 07 W.) deviation from the operating schedule the December 19, 2008 Final Rule That airspace extending upward from 700 for the Swing Span Bridge across entitled ‘‘Ensuring That Department of feet above the surface within an 8-mile radius Chickasaw Creek, mile 0.0, in Mobile, Health and Human Services Funds Do of the Waterbury-Oxford Airport. Alabama. The bridge has a vertical Not Support Coercive or Discriminatory Issued in College Park, Georgia, on clearance of 6 feet above mean high Policies or Practices in Violation of February 11, 2011. water in the closed-to-navigation Federal Law’’ (the ‘‘2008 Final Rule’’). Mark D. Ward, position and unlimited in the open-to- Neither the 2008 final rule, nor this final Manager, Operations Support Group, Eastern navigation position. rule, alters the statutory protections for Service Center, Air Traffic Organization. In accordance with 33 CFR 117.5, the individuals and health care entities [FR Doc. 2011–3943 Filed 2–22–11; 8:45 am] bridge currently opens on signal for the under the federal health care provider BILLING CODE 4910–13–P passage of vessels. This deviation allows conscience protection statutes, the bridge to remain closed to including the Church Amendments, navigation from 7 a.m. until 3 p.m. on Section 245 of the Public Health Service DEPARTMENT OF HOMELAND Tuesday, March 8, 2011. At all other Act, and the Weldon Amendment. SECURITY times, the bridge will open on signal for These federal statutory health care the passage of vessels. provider conscience protections remain Coast Guard The closure is necessary in order to in effect. change out railroad lift rails on the DATES: This rule is effective March 25, bridge. This maintenance is essential for 33 CFR Part 117 2011. the continued operation of the bridge. FOR FURTHER INFORMATION CONTACT: [Docket No. USCG–2011–0084] Notices will be published in the Eighth Coast Guard District Local Notice to Georgina Verdugo, Director, Office for Drawbridge Operation Regulation; Mariners and will be broadcast via the Civil Rights, Department of Health and Chickasaw Creek, AL Coast Guard Broadcast Notice to Human Services, 202–619–0403, Room F515, Hubert E. Humphrey Building, AGENCY: Coast Guard, DHS. Mariners System. Navigation on the waterway consists 200 Independence Avenue, SW., ACTION: Notice of temporary deviation Washington, DC 20201. from regulations. mainly of tugs with tows and ships. Coordination between the Coast Guard SUPPLEMENTARY INFORMATION: SUMMARY: The Commander, Eighth and the waterway users determined that Table of Contents Coast Guard District, issued a temporary there should not be any significant deviation from the regulation governing effects on these vessels. There are no I. Introduction the operation of the CSX Railroad Swing II. Background alternate routes available to vessel III. Proposed Rule Span Bridge across Chickasaw Creek, traffic. The bridge will not be able to IV. Comments on the Proposed Rule mile 0.0, in Mobile, Alabama. The open for emergencies. A. Scope of Comments deviation is necessary to replace In accordance with 33 CFR 117.35(e), B. Comments Addressing Awareness and railroad ties on the bridge. This the drawbridge must return to its regular Enforcement

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C. Comments Addressing the Underlying and the Weldon Amendment, other health care personnel in Statutes and Other Law collectively known as the ‘‘federal employment, promotion, termination of D. Comments Addressing Whether the health care provider conscience employment, or the extension of staff or 2008 Final Rule Clarified the Provider protection statutes,’’ prohibit recipients other privileges because the individual Conscience Statutes E. Comments Addressing Access to Health of certain federal funds from ‘‘performed or assisted in the Care discriminating against certain health performance of a lawful sterilization F. Comments Addressing Costs to care providers based on their refusal to procedure or abortion, because he Providers participate in health care services they refused to perform or assist in the V. Statutory Authority find religiously or morally performance of such a procedure or VI. Overview and Section-by-Section objectionable. Most of these statutory abortion on the grounds that his Description of the Final Rule protections have existed for decades. performance or assistance in the VII. Impact Statement and Other Required Additionally, the Patient Protection and performance of the procedure or Analyses Affordable Care Act, Public Law 111– VIII. Paperwork Reduction Act Information abortion would be contrary to his Collection 148, 124 Stat. 119 (2010), as amended religious beliefs or moral convictions, or by Health Care and Education because of his religious beliefs or moral I. Introduction Reconciliation Act of 2010, Public Law convictions respecting sterilization The Department supports clear and 111–152, 124 Stat. 1029 (2010) procedures or abortions.’’ strong conscience protections for health (collectively referred to as the The third conscience provision, care providers who are opposed to ‘‘Affordable Care Act’’) includes new contained in 42 U.S.C. 300a–7(c)(2), performing abortions. While Federal health care provider conscience goes beyond abortion and sterilization health care provider conscience statutes protections within the health insurance and prohibits any entity that receives a have been in effect for decades, the exchange system. grant or contract for biomedical or Department has received comments Conscience Clauses/Church behavioral research under any program suggesting that the 2008 final rule Amendments [42 U.S.C. 300a–7] administered by the Department from attempting to clarify the Federal health discriminating against any physician or The conscience provisions contained care provider conscience statutes has other health care personnel in in 42 U.S.C. 300a–7 (collectively known instead led to greater confusion. The employment, promotion, termination of as the ‘‘Church Amendments’’) were comments received suggested that there employment, or extension of staff or enacted at various times during the is a need to increase outreach efforts to other privileges ‘‘because he performed 1970s to make clear that receipt of make sure providers and grantees are or assisted in the performance of any Federal funds did not require the aware of these statutory protections. It is lawful health service or research recipients of such funds to perform also clear that the Department needs to activity, because he refused to perform abortions or sterilizations. The first have a defined process for health care or assist in the performance of any such conscience provision in the Church providers to seek enforcement of these service or activity on the grounds that Amendments, 42 U.S.C. 300a–7(b), protections. his performance or assistance in the provides that the receipt by an The Department seeks to strengthen performance of such service or activity individual or entity of any grant, existing health care provider conscience would be contrary to his religious contract, loan, or loan guarantee under statutes by retaining that part of the beliefs or moral convictions, or because certain statutes implemented by the 2008 Final Rule that established an of his religious beliefs or moral Department of Health and Human enforcement process. At the same time, convictions respecting any such service Services does not authorize a court, this Rule rescinds those parts of the or activity.’’ public official, or other public authority 2008 Final Rule that were unclear and to require: The fourth conscience provision, 42 potentially overbroad in scope. This 1. The individual to perform or assist U.S.C. 300a–7(d), provides that ‘‘[n]o partial rescission of the 2008 Final Rule in a sterilization procedure or an individual shall be required to perform does not alter or affect the federal abortion, if it would be contrary to the or assist in the performance of any part statutory health care provider individual’s religious beliefs or moral of a health service program or research conscience protections. convictions; activity funded in whole or in part Finally, the Department is beginning 2. The entity to make its facilities under a program administered by [the an initiative designed to increase the available for sterilization procedures or Department] if his performance or awareness of health care providers abortions, if the performance of assistance in the performance of such about the protections provided by the sterilization procedures or abortions in part of such program or activity would health care provider conscience statutes, the facilities is prohibited by the entity be contrary to his religious beliefs or and the resources available to providers on the basis of religious beliefs or moral moral convictions.’’ who believe their rights have been convictions; or The final conscience provision violated. The Department’s Office for 3. The entity to provide personnel for contained in the Church Amendments, Civil Rights will lead this initiative, and the performance or assistance in the 42 U.S.C. 300a–7(e), prohibits any entity will collaborate with the funding performance of sterilization procedures that receives a grant, contract, loan, loan components of the Department to or abortions, if it would be contrary to guarantee, or interest subsidy under determine how best to inform health the religious beliefs or moral certain Departmentally implemented care providers and grantees about health convictions of such personnel. statutes from denying admission to, or care conscience protections, and the The second conscience provision in otherwise discriminating against, ‘‘any new process for enforcing those the Church Amendments, 42 U.S.C. applicant (including applicants for protections. 300a–7(c)(1), extends protections to internships and residencies) for training II. Background personnel decisions and prohibits any or study because of the applicant’s entity that receives a grant, contract, reluctance, or willingness, to counsel, Statutory Background loan, or loan guarantee under certain suggest, recommend, assist, or in any The Church Amendments, Section Department-implemented statutes from way participate in the performance of 245 of the Public Health Service Act, discriminating against any physician or abortions or sterilizations contrary to or

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consistent with the applicant’s religious 109–149, Sec. 508(d), 119 Stat. 2833, in the Patient Protection and Affordable beliefs or moral convictions.’’ 2879–80 (Dec. 30, 2005); Revised Care Act’’ (March 24, 2010). Continuing Appropriations Resolution Public Health Service Act Sec. 245 [42 Regulatory Background of 2007, Public Law 110–5, Sec. 2, 121 U.S.C. 238n] Stat. 8, 9 (Feb. 15, 2007); Consolidated No regulations were required or Enacted in 1996, section 245 of the Appropriations Act, 2008, Public Law necessary for the conscience protections Public Health Service Act (PHS Act) 110–161, Div. G, Sec. 508(d), 121 Stat. contained in the Church Amendments, prohibits the federal government and 1844, 2209 (Dec. 26, 2007); PHS Act, sec. 245, and the Weldon any state or local government receiving Consolidated Security, Disaster Amendment to take effect. Nevertheless, federal financial assistance from Assistance, and Continuing on August 26, 2008, nearly forty years discriminating against any health care Appropriations Act, 2009, Public Law after enactment of the Church entity on the basis that the entity: 110–329, Div. A, Sec. 101, 122 Stat. Amendments, the Department issued a 1. Refuses to undergo training in the 3574, 3575 (Sept. 30, 2008); proposed interpretive rule entitled performance of induced abortions, to Consolidated Appropriations Act, 2010, ‘‘Ensuring that Department of Health require or provide such training, to Public Law 111–117, Div. D, Sec. and Human Services Funds Do Not perform such abortions, or to provide 508(d), 123 Stat. 3034, 3279–80 (Dec. Support Coercive or Discriminatory referrals for such training or such 16, 2009). The Weldon Amendment Policies or Practices in Violation of abortions; provides that ‘‘[n]one of the funds made Federal Law’’ (73 FR 50274). 2. Refuses to make arrangements for available in this Act [making In the preamble to the 2008 Final such activities; or appropriations for the Departments of Rule, the Department concluded that 3. Attends (or attended) a post- Labor, Health and Human Services, and regulations were necessary in order to: graduate physician training program, or Education] may be made available to a 1. Educate the public and health care any other program of training in the Federal agency or program, or to a state providers on the obligations imposed, health professions, that does not (or did or local government, if such agency, and protections afforded, by Federal not) perform induced abortions or program, or government subjects any law; require, provide, or refer for training in institutional or individual health care 2. Work with state and local the performance of induced abortions, entity to discrimination on the basis that governments and other recipients of or make arrangements for the provision the health care entity does not provide, funds from the Department to ensure of such training. pay for, provide coverage of, or refer for compliance with the nondiscrimination For the purposes of this protection, abortions.’’ It also defines ‘‘health care requirements embodied in the Federal the statute defines ‘‘financial assistance’’ entity’’ to include ‘‘an individual health care provider conscience as including, ‘‘with respect to a physician or other health care protection statutes; government program,’’ ‘‘governmental professional, a hospital, a provider- 3. When such compliance efforts payments provided as reimbursement sponsored organization, a health prove unsuccessful, enforce these for carrying out health-related maintenance organization, a health nondiscrimination laws through the activities.’’ In addition, PHS Act sec. 245 insurance plan, or any other kind of various Department mechanisms, to requires that, in determining whether to health care facility, organization, or ensure that Department funds do not grant legal status to a health care entity plan.’’ support coercive or discriminatory (including a state’s determination of Affordable Care Act practices, or policies in violation of whether to issue a license or certificate), federal law; and the federal government and any state or The Affordable Care Act includes new 4. Otherwise take an active role in local government receiving federal health care provider conscience promoting open communication within financial assistance shall deem protections within the health insurance the health care industry, and between accredited any postgraduate physician Exchanges. Section 1303(b)(4) of the Act providers and patients, fostering a more ‘‘ training program that would be provides that No qualified health plan inclusive, tolerant environment in the accredited, but for the reliance on an offered through an Exchange may health care industry than may currently accrediting standard that, regardless of discriminate against any individual exist. whether such standard provides health care provider or health care (‘‘Ensuring That Department of Health exceptions or exemptions, requires an facility because of its unwillingness to and Human Services Funds Do Not entity: provide, pay for, provide coverage of, or 1. To perform induced abortions; or refer for abortions.’’ Like the other Support Coercive or Discriminatory 2. To require, provide, or refer for statutory health care provider Policies or Practices in Violation of training in the performance of induced conscience protections, this provision of Federal Law,’’ 73 FR 78072, 78074, 45 abortions, or make arrangements for law does not require rulemaking to take CFR part 88 (Dec. 19, 2008)). such training. effect, and continues to apply The 2008 Final Rule was published in notwithstanding this partial rescission the Federal Register on December 19, Weldon Amendment of the 2008 Final Rule. 2008. The Rule contained definitions of The Weldon Amendment, originally A recent Executive Order affirms that terms used in the federal health care adopted as section 508(d) of the Labor- under the Affordable Care Act, provider conscience statutes, discussed HHS Division (Division F) of the 2005 longstanding federal health care their applicability, noted the Consolidated Appropriations Act, provider conscience laws remain intact, prohibitions and requirements of the Public Law 108–447, 118 Stat. 2809, and new protections prohibit statutes, and created an enforcement 3163 (Dec. 8, 2004), has been readopted discrimination against health care mechanism. The 2008 Final Rule also (or incorporated by reference) in each facilities and health care providers imposed a new requirement that all subsequent HHS appropriations act. based on their unwillingness to provide, recipients and subrecipients of Title V of the Departments of Labor, pay for, provide coverage of, or refer for Departmental funds had to submit Health and Human Services, and abortions. Executive Order 13535, written certification that they would Education, and Related Agencies ‘‘Ensuring Enforcement and operate in compliance with the provider Appropriations Act, 2006, Public Law Implementation of Abortion Restrictions conscience statutes. This new

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requirement was based on a concern confusion that may exist because of the certification requirement, on health care that there was a lack of knowledge in rule; and providers when there are already the health care community regarding the 4. Comment on whether the objectives sufficient laws on the books to protect rights and obligations created by the of the 2008 Final Rule might also be their rights. accomplished through non-regulatory federal health care provider conscience A large number of commenters also protection statutes. The Department means, such as outreach and education. expressed concern that the 2008 Final received a number of comments IV. Comments on the Proposed Rule Rule created ambiguities regarding the expressing concern that this new rights of patients, providers, and certification would impose a substantial A. Scope of Comments employers. Specifically, a number of burden. The 2008 Final Rule went into The Department received more than effect on January 20, 2009 except that its commenters noted that the 2008 Final 300,000 comments addressing its notice Rule created ambiguities that could certification requirement never took of proposed rulemaking proposing to expand the provider conscience effect, as it was subject to the rescind in its entirety the 2008 Final protections beyond those established in information collection approval process Rule. A wide range of individuals and existing federal statutes. Several groups under the Paperwork Reduction Act, organizations, including private which was never completed. citizens, health care workers, health commented that during rulemaking for the 2008 Final Rule, proponents failed Pending Litigation care providers, religious organizations, patient advocacy groups, professional to provide evidence that the long- In a consolidated action filed in the organizations, universities and research standing statutory protections were U.S. District Court for the District of institutions, consumer organizations, insufficiently clear or that a problem Connecticut, eight states and several state and local governments, and currently exists for providers. organizations challenged and sought to members of Congress, submitted Nearly 187,000 comments expressed enjoin enforcement of the 2008 Final comments regarding the notice of opposition to the Department’s proposal Rule by the Department. According to proposed rulemaking. The large number to rescind the 2008 Final Rule. Nearly plaintiffs, in promulgating the 2008 of comments received covered a wide 112,000 of these comments stated that Final Rule, HHS exceeded its statutory variety of issues and points of view health care workers should not be authority, violated the Administrative responding to the Department’s request Procedure Act (APA) by failing to required to perform procedures that for comments on the four issues violate their religious or moral respond adequately to public comments, mentioned above, and the Department and conditioned the receipt of federal convictions. Nearly 82,000 of the reviewed and analyzed all of the comments in opposition expressed funds on compliance with vague and comments. The overwhelming majority concern that without the 2008 Final overly broad regulations. The Court of comments, both in support of and Rule, health care providers would be granted a stay of all proceedings in this against rescission of the 2008 Final forced to perform abortions in violation litigation pending the issuance of this Rule, were form letters organized by Final Rule. Connecticut v. United various groups. In this section, which of their religious or moral convictions. States, No. 3:09–CV–054–RNC (D. provides an overview of the comments Many of these commenters also Conn). received, and in the following sections, speculated that eliminating provider conscience protections would cause III. Proposed Rule which provide a more detailed response to these comments, we respond to health care providers to leave the On March 10, 2009, the Department comments by issue, rather than by profession, which would reduce access proposed rescinding, in its entirety, the individual comment, as necessitated by to health care services. ‘‘ 2008 Final Rule entitled Ensuring That the number of comments received and Additionally, thousands of Department of Health and Human by the issues posed by them. commenters suggested that rescinding Services Funds Do Not Support More than 97,000 individuals and the 2008 Final Rule would violate the Coercive or Discriminatory Policies or entities submitted comments generally Practices in Violation of Federal Law’’ First Amendment religious freedom supportive of the proposal to rescind the rights of providers or the tenets of the (74 FR 10207). The Department sought 2008 Final Rule. Approximately one- public comment in order to determine Hippocratic Oath, and would impact the fifth of the comments in favor of ethical integrity of the medical whether or not to rescind the 2008 Final rescinding the 2008 Final Rule profession. While the Department Rule in part or in its entirety. In indicated that the 2008 Final Rule was carefully considered these comments, particular, the Department sought not necessary, because existing law, comment addressing the following: including Title VII of the Civil Rights we do not specifically address them 1. Information, including specific Act of 1964 and the federal health care because this partial rescission does not examples where feasible, addressing the provider conscience protection statutes, alter or affect the existing federal scope and nature of the problems giving already provided protections to statutory health care provider rise to the need for federal rulemaking individuals and health care entities. An conscience protections. and how the current rule would resolve overwhelming number of these Finally, numerous commenters those problems; commenters expressed concern that the opposing rescission of the 2008 Final 2. Information, including specific 2008 Final Rule unacceptably impacted Rule expressed concern that if the 2008 examples where feasible, supporting or patient rights and restricted access to Final Rule was rescinded in its entirety, refuting allegations that the 2008 Final health care and conflicted with federal there would be no regulatory Rule reduces access to information and law, state law, and other guidelines enforcement scheme to protect the health care services, particularly by low- addressing informed consent. rights afforded to health care providers, income women; Additionally, commenters in support of including medical students, under the 3. Comment on whether the 2008 rescinding the 2008 Final Rule federal health care provider conscience Final Rule provides sufficient clarity to contended that this new regulation protection statutes. minimize the potential for harm imposed additional costs and resulting from any ambiguity and administrative burdens, through the

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B. Comments Addressing Awareness termination of funding, return of funds on its Web site. See Office for Civil and Enforcement paid out in violation of health care Rights, U.S. Department of Health and provider conscience protection Need for Enforcement Mechanism Human Services, How to File a provisions under 45 CFR parts 74, 92, Complaint (2010) (http://www.hhs.gov/ Comment: The Department received and 96, as applicable. ocr/civilrights/complaints/index.html). numerous comments against rescission Combining the above education and of the 2008 Final Rule expressing Need for Education and Outreach outreach programs with the enforcement concern that if the 2008 Final Rule were Comment: The Department’s notice of provision in this final rule should rescinded in its entirety, there would be proposed rulemaking for this final rule no regulatory enforcement scheme to requested comment on the need for an ensure that providers can take protect the rights afforded to health care education and outreach program in advantage of these protections. providers, including medical students, addition to the promulgation of a The Department is also amending its under the Federal health care provider regulatory enforcement scheme. 74 FR grant documents to make clear that conscience protection statutes. 10207, 10210. The Department received recipients are required to comply with Response: The Department shares the many comments expressing concern the federal health care provider concerns expressed in these comments, about the lack of knowledge about the conscience protection laws. and agrees there must be a clear process federal health care provider conscience for enforcement of the health care protection statutes in the health care C. Comments Addressing the provider conscience protection statutes. industry. Many commenters opposed to Underlying Statutes and Other Laws While the longstanding Federal health rescission related anecdotes of hospitals Status of Underlying Statutory care provider conscience protection and other health care entities failing to Conscience Protections statutes have provided protections for respect the conscience rights of health health care providers, there was no clear care providers. The commenters opined Comment: The Department received a mechanism for a health care provider that if the 2008 Final Rule was large number of comments, both in favor who believed his or her rights were rescinded in its entirety, health care of and in opposition to rescinding the violated to seek enforcement of those entities receiving federal funding would 2008 Final Rule, which expressed rights. To address these comments, this not honor the rights provided health concern regarding the effect of the 2008 final rule retains the provision in the care providers under the Federal health Final Rule on protections for providers. 2008 Final Rule that designates the care provider conscience protection Many commenters advocated leaving Office for Civil Rights (OCR) of the statutes. Department of Health and Human Response: The Department is the final rule in place, stating that Services to receive complaints of concerned about the number of rescinding the 2008 Final Rule would discrimination and coercion based on comments it received that were opposed eliminate the protections for providers the Federal health care provider to rescission of the 2008 Final Rule established under the Federal health conscience protection statutes. based on a belief that rescission of the care provider conscience protection OCR will lead an initiative across the rule would abolish the long-standing statutes. On the other hand, many Department that will include staff from statutory provider conscience commenters advocated rescission of the the Departmental programs that fund protections as these comments reflect a 2008 Final Rule based on the mistaken grants, in order to develop a coordinated lack of understanding that the statutory belief that its rescission would eliminate investigative and enforcement process. protections are in effect irrespective of the ability of certain providers to refuse OCR is revising its complaint forms to Department regulations or the 2008 final to provide requested medical services make it easier for health care providers rule. The Department believes it is that were contrary to their moral or to understand how to utilize the important to provide outreach to the religious beliefs. complaint process, and will coordinate health care community about the the handling of complaints with the Federal health care provider conscience Response: These comments staff of the Departmental programs from protection statutes. To address this underscore the misconceptions that which the entity, with respect to whom need, the Department’s Office for Civil exist regarding the proposed partial a complaint has been filed, receives Rights will work with the funding rescission of the 2008 Final Rule, and funding (i.e., Department funding components of the Department to highlight the need for continued component). determine how best to raise grantee and education and training of health care Enforcement of the statutory provider awareness of these providers regarding the longstanding conscience protections will be longstanding statutory protections, and statutory protections. The Federal conducted by staff of the Department the newly created enforcement process. health care provider conscience funding component, in conjunction The Department’s Office for Civil protection statutes, including the with the Office for Civil Rights, through Rights currently engages in outreach Church Amendments, the Section 245 of normal program compliance and education efforts and works closely the PHS Act, and the Weldon mechanisms. If the Department becomes with health care entities to educate Amendment, have long provided aware that a state or local government them about all of the Federal authorities statutory protections for providers. or an entity may have undertaken that the Office for Civil Rights enforces. Neither the 2008 Final Rule, nor this activities that may violate the statutory The Office for Civil Rights will include Final Rule, which rescinds, in part, and conscience protections, the Department information on the Federal health care revises the 2008 Final Rule, alters the will work with such government or provider conscience protection statutes statutory protections for individuals and entity to assist such government or in such outreach, and will also include health care entities under the Federal entity to comply or come into information so that health care entities health care provider conscience compliance with such requirements or understand the new process for protection statutes. Departmental prohibitions. If, despite the enforcement of the Federal health care funding recipients must continue to Department’s assistance, compliance is provider conscience protection statutes. not achieved, the Department will The Office for Civil Rights provides a comply with the Federal health care consider all legal options, including Web portal for the receipt of complaints provider conscience protection statutes.

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Interaction Between Provider Rights Act of 1964, as amended (Title surrounding the provision of health care Conscience Statutes and Other Federal VII), 42 U.S.C. 2000e et seq.. services. The Department emphasizes Statutes Response: The relationship between the importance of and strongly the protections contained under the encourages early, open, and respectful Comment: Several other comments federal health care provider conscience communication between providers and raised questions and identified protection statutes and the protections patients surrounding sensitive issues of ambiguities with respect to the afforded under Title VII fall outside the health care, including the exercise of interaction between the 2008 Final Rule scope of this final rule. Under the final provider conscience rights, and and statutes governing other Department rule, the Department’s Office for Civil alternatives that are not being programs, including: the Medicaid Rights (OCR) will continue to receive recommended as a result. program, pursuant to Title XIX of the complaints alleging violations of the Partial rescission of the 2008 Final Social Security Act, 42 U.S.C. 1396– federal health care provider conscience Rule should clarify any mistaken belief 1396v (2006); the Community Health protection statutes. The Equal that it altered the scope of information Centers program, pursuant to section Employment Opportunity Commission that must be provided to a patient by 330 of the PHS Act, 42 U.S.C. (EEOC) enforces Title VII, which their provider in order to fulfill 264(b)(2008); the Title X Family prohibits employers—including health informed consent requirements. Planning program, pursuant to Title X of care providers—from discriminating D. Comments Addressing Whether the the Public Health Service Act, 42 U.S.C. against any applicant or employee in 2008 Final Rule Clarified the Provider 300–300a–6 (2006); and the Emergency hiring, discipline, promotion, Conscience Statutes Medical Treatment and Labor Act termination, or other terms and (EMTALA), 42 U.S.C. 1395dd (2003), as conditions of employment based on Comment: The Department sought well as the federal civil rights statutes religious beliefs. information regarding whether the 2008 enforced by the Department in its Guidance for handling complaints Final Rule provided the clarity that it programmatic settings, which include involving Title VII issues can be found intended to provide. The comments Title VI of the Civil Rights Act of 1964, in Procedures for Complaints of received in response to this question 42 U.S.C. 2000d (1964); Section 504 of Employment Discrimination Filed tended to focus on whether or not the the Rehabilitation Act of 1973, 29 U.S.C. Against Recipients of Federal Financial definitions contained in the 2008 Final 794 (2002); Title II of the Americans Assistance, 29 CFR part 1691 (Aug. 4, Rule were too broad. Commenters with Disabilities Act of 1990, 42 U.S.C. 1989). The Procedures provide for supporting rescission of the 2008 Final 12131–12134 (1990); and the Age coordination between the EEOC and Rule indicated that the definitions were Discrimination Act of 1975, 42 U.S.C. other Federal departments for review, far broader than the scope of the federal 6101–6107 (1998). Specifically, investigation, and resolution of provider conscience statutes. commenters expressed concern that the employment discrimination complaints, Commenters opposing rescission of the 2008 Final Rule conflicts with the including those based on religion. 2008 Final Rule did not believe the definitions were too broad. Many requirements of these other Federal Informed Consent statutes. comments indicated that the 2008 Final Comment: Many comments expressed Rule created confusion that the federal Response: Health care entities must concern that the 2008 Final Rule would provider conscience protections continue to comply with the long- prevent a patient from being able to give authorized refusal to treat certain kinds established requirements of the statutes informed consent, because the health of patients rather than to perform above governing Departmental care provider might not advise the certain medical procedures. Numerous programs. These statutes strike a careful patient of all health care options. comments on both sides questioned balance between the rights of patients to Response: The doctrine of informed whether the 2008 Final Rule expanded access needed health care, and the consent requires that a health care the scope of the provider conscience conscience rights of health care provider inform an individual patient of statutes by suggesting that the term providers. The conscience laws and the the risks and benefits of any health care ‘‘abortion’’ included contraception. other federal statues have operated side treatment or procedure. In order to give Response: The comments reflected a by side often for many decades. As informed consent, the patient must be range of views regarding whether the repeals by implication are disfavored able to understand and weigh the 2008 Final Rule added clarity to the and laws are meant to be read in treatment or procedure’s risks and federal health care conscience statutes. harmony, the Department fully intends benefits, and must understand available The comments received illustrated that to continue to enforce all the laws it has alternatives. Additionally, a patient there is significant division over been charged with administering. The must communicate his or her informed whether the definitions provided by the Department is partially rescinding the consent to the provider, which is most 2008 Final Rule are in line with the 2008 final rule in an attempt to address commonly done through a written longstanding Federal health care ambiguities that may have been caused document. State laws generally treat provider conscience protection statutes. in this area. The approach of a case by lack of informed consent as a matter of The Department agrees with concerns case investigation and, if necessary, negligence on the part of the health care that the 2008 Final Rule may have enforcement will best enable the provider failing to disclose necessary caused confusion as to whether the Department to deal with any perceived information to the patient. Provider Federal statutory conscience protections conflicts within concrete situations. association and accreditation allow providers to refuse to treat entire Interaction With Title VII of the Civil association guidelines set forth groups of people based on religious or Rights Act of 1964 additional requirements on members moral beliefs. The Federal provider and member entities. conscience statutes were intended to Comment: Several comments raise We recognize that informed consent is protect health care providers from being questions about the overlap between the crucial to the provision of quality health forced to participate in medical federal health care provider conscience care services. The provider-patient procedures that violated their moral and protection statutes and the protections relationship is best served by open religious beliefs. They were never afforded under Title VII of the Civil communication of conscience issues intended to allow providers to refuse to

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provide medical care to an individual provide contraceptive services, the Commenters stated that the new because the individual engaged in Medicaid Program does require that certification requirement imposed behavior the health care provider found States provide contraceptive services to substantial additional responsibilities objectionable. Medicaid beneficiaries. The Department on health care entities, and that the The 2008 Final Rule did not provide is concerned that the breadth of the burden analysis did not sufficiently that the term ‘‘abortion,’’ as contained in 2008 Final Rule may undermine the account for the cost of collecting the Federal health care provider ability of patients to access these information for, submitting, and conscience protection statutes, includes services, especially in areas where there maintaining the written certifications contraception. However, the comments are few health care providers for the required by the 2008 Final Rule. reflect that the 2008 Final Rule caused patient to choose from. As we state Additionally, the Department received significant confusion as to whether above, entities must continue to comply several comments outlining various abortion also includes contraception. with their Title X, Section 330, estimates regarding the burdens, The provision of contraceptive services EMTALA, and Medicaid obligations, as including time and cost, on health care has never been defined as abortion in well as the federal health care provider entities to comply with certification federal statute. There is no indication conscience protection statutes. requirements of the 2008 Final Rule. that the federal health care provider Accordingly, the Department partially Response: The Federal health care conscience statutes intended that the rescinds the 2008 Final Rule based on provider conscience protection statutes term ‘‘abortion’’ included contraception. concerns expressed that it had the mandating requirements for protecting The Department rescinds the potential to negatively impact patient health care providers have been in effect definitions contained in the 2008 Final access to contraception and certain for decades. The stated reason for Rule because of concerns that they may other medical services without a basis enacting the certification requirement have caused confusion regarding the in federal conscience protection was a concern that there is a lack of scope of the federal health care provider statutes. knowledge on the part of states, local conscience protection statutes. The governments, and the health care Concerns That Rescission of the 2008 industry of the federal health care Department is not formulating new Final Rule Would Limit Access definitions because it believes that provider conscience protections. The individual investigations will provide Comment: A substantial number of Department believes it can raise the best means of answering questions comments in opposition to rescinding awareness of these protections by about the application of the statutes in the 2008 Final Rule maintained that amending existing grant documents to particular circumstances. Roman Catholic hospitals would have to specifically require that grantees close, that rescission of the rule would acknowledge they must comply with the E. Comments Addressing Access to limit access to pro-life counseling, and laws. Health Care that providers would either leave the The Department estimated that Concerns the 2008 Final Rule Would health care industry or choose not to 571,947 health care entities would be Limit Access enter it, because they believed that they required to comply with the would be forced to perform abortions. certification requirements. The Comment: The Department received As such, these commenters concluded Department also stated in the preamble several comments suggesting that the that rescinding the 2008 Final Rule to the 2008 Final Rule that it estimated 2008 Final Rule could limit access to would limit access to health care the total quantifiable costs of the reproductive health services and services or information. regulation, including direct and indirect information, including contraception, Response: Under this partial costs, as $43.6 million each year. See 73 and could impact a wide range of rescission of the 2008 Final Rule, FR 98095, Dec. 18, 2009. medical services, including care for Roman Catholic hospitals will still have The Department agrees with these sexual assault victims, provision of HIV/ the same statutory protections afforded commenters, and believes that the AIDS treatment, and emergency to them as have been for decades. The certification requirements in the 2008 services. Additionally, a number of Department supports the longstanding Final Rule are unnecessary to ensure commenters expressed concern that the Federal health care provider conscience compliance with the federal health care 2008 Final Rule could laws, and with this Final Rule provides provider conscience protection statutes, disproportionately affect access to a clear process to enforce those laws. As and that the certification requirements health care by certain sub-populations, discussed above, the Federal health care created unnecessary additional financial including low-income patients, provider conscience statutes have and administrative burdens on health minorities, the uninsured, patients in provided protections for decades, and care entities. The Department believes rural areas, Medicaid beneficiaries, or will continue to protect health care that amending existing grant documents other medically-underserved providers after partial rescission of the to require grantees to acknowledge that populations. 2008 Final Rule. Entities must continue they will comply with the provider Response: The Department agrees to comply with the Federal health care conscience laws will accomplish the with comments that the 2008 Final Rule provider conscience protection statutes. same result with far less administrative may negatively affect the ability of Moreover, under this Final Rule, health burden. While proposed, the patients to access care if interpreted care providers who believe their rights certification requirements were never broadly. As noted above, in the were violated will now be able to file a finalized under the previous rule, and litigation filed shortly after issuance of complaint with the Department’s Office they are deleted in this rule. The the 2008 Final Rule, eight states sought for Civil Rights in order to seek Department emphasizes, however, that to enjoin implementation of the Rule, enforcement of those rights. health care entities remain responsible arguing that it would prevent them from for costs associated with complying enforcing their state laws concerning F. Comments Addressing Costs to with the Federal health care provider access to contraception. Connecticut v. Providers conscience protection statutes, in the United States, No. 3:09–CV–054–RNC Comment: The Department received same way that health care entities were (D. Conn). Additionally, while there are several comments addressing the costs before the promulgation of the 2008 no Federal laws compelling hospitals to to providers of the 2008 Final Rule. Final Rule. Additionally, health care

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providers can now seek enforcement of conscience statutes. Section 88.3 businesses if a rule has a significant their conscience protections through the describes the applicability of the 2008 impact on a substantial number of small Department’s Office for Civil Rights. Final Rule. Section 88.4 describes the entities. With this final rule the requirements and prohibitions under Department is rescinding the V. Statutory Authority the 2008 Final Rule. Section 88.5 certification requirements which will The Secretary hereby rescinds, in contains the certification requirement. reduce the potential burden to small part, redesignates, and revises the 2008 The preamble to the August 26, 2008 businesses. We have examined the Final Rule entitled ‘‘Ensuring That Notice of Proposed Rulemaking (73 FR implications of this proposed rule as Department of Health and Human 50274) and the preamble to the required by Executive Order 12866. Services Funds Do Not Support December 19, 2008 Final Rule (73 FR Executive Order 12866 directs agencies Coercive or Discriminatory Policies or 78072) addressing these sections are to assess all costs and benefits of Practices in Violation of Federal Law,’’ neither the position of the Department, available regulatory alternatives and, in accordance with the following nor guidance that should be relied upon when regulation is necessary, to select statutory authority. As discussed above, for purposes of interpreting the Federal regulatory approaches that maximize the Federal health care provider health care provider conscience net benefits (including potential conscience protection statutes, protection statutes. economic, environmental, public health including the Church Amendments, the Section 88.6 has been re-designated as and safety, and other advantages; PHS Act Sec. 245, and the Weldon Section 88.2. Section 88.2 provides that distributive impacts; and equity). Amendment, require, among other the Department’s Office for Civil Rights Executive Order 12866 classifies a rule things, that the Department and (OCR) is designated to receive as significant if it meets any one of a recipients of Department funds complaints of discrimination and number of specified conditions, (including state and local governments) coercion based on the health care including: having an annual effect on refrain from discriminating against provider conscience protection statutes, the economy of $100 million, adversely institutional and individual health care and that OCR will coordinate the affecting a single sector of the economy entities for their participation in certain handling of complaints with the HHS in a material way, adversely affecting medical procedures or services, Departmental funding component(s) competition, or adversely affecting jobs. including certain health services, or from which the entity complained about This final rule is not economically research activities funded in whole or in receives funding. This language is significant under these standards. part by the Federal government. revised slightly from the 2008 Final Executive Order 13132 establishes However, none of these statutory Rule to clarify that ‘‘Department funding certain requirements that an agency provisions require promulgation of component’’ is not a defined term. must meet when it promulgates a regulations for their interpretation or proposed rule (and subsequent final VII. Impact Statement and Other implementation. The provision of the rule) that imposes substantial direct Required Analyses 2008 Final Rule establishing that the requirement costs on state and local Office for Civil Rights is authorized to We have examined the impacts of this governments, preempts State law, or receive and investigate complaints final rule as required by Executive otherwise has federalism implications. regarding violations of the federal health Order 12866 on Regulatory Planning This final rule would not require care provider conscience statutes is and Review (September 30, 1993, as additional steps to meet the being retained. This Final Rule is being further amended), the Regulatory requirements of Executive Order 13132. issued pursuant to the authority of 5 Flexibility Act (RFA) (5 U.S.C. 601 et Title II of the Unfunded Mandates U.S.C. 301, which empowers the head of seq.), section 202 of the Unfunded Reform Act of 1995 (Pub. L. 104–4) an Executive department to prescribe Mandates Reform Act of 1995 (2 U.S.C. requires cost-benefit and other analysis regulations ‘‘for the government of his 1532), Executive Order 13132 on before any rulemaking if the rule department, the conduct of his Federalism (August 4, 1999), and the includes a ‘‘Federal mandate that may employees, the distribution and Congressional Review Act (5 U.S.C. result in the expenditure by state, local, performance of its business, and the 804(2)). Executive Order 12866 directs and tribal governments, in the aggregate, custody, use, and preservation of its agencies to assess all costs and benefits or by the private sector, of $100,000,000 records, papers, and property.’’ of available regulatory alternatives and, or more (adjusted annually for inflation) if regulation is necessary, to select in any 1 year.’’ The current inflation- VI. Overview and Section-by-Section regulatory approaches that maximize adjusted statutory threshold is Description of the Final Rule net benefits (including potential approximately $130 million. We have Section 88.1 describes the purpose of economic, environmental, public health determined that this final rule does not the Final Rule. The language is revised and safety effects, distributive impacts, create an unfunded mandate under the slightly from the 2008 Final Rule, and and equity). A regulatory impact Unfunded Mandates Reform Act, states that the purpose of Part 88 is to analysis (RIA) must be prepared for because it does not impose any new provide for the enforcement of the major rules with economically requirements resulting in expenditures Church Amendments, 42 U.S.C. 300a–7, significant effects ($100 million or more by state, local, and tribal governments, section 245 of the Public Health Service in any one year). The 2008 Final Rule or by the private sector. Act, 42 U.S.C. 238n, and the Weldon estimated the quantifiable costs Section 654 of the Treasury and Amendment, Consolidated associated with the certification General Government Appropriations Appropriations Act, 2010, Public Law requirements of the proposed regulation Act of 1999 requires Federal 111–117, Div. D, Sec. 508(d), 123 Stat. to be $43.6 million each year. departments and agencies to determine 3034, 3279–80, referred to collectively Rescinding the certification whether a proposed policy or regulation as the ‘‘federal health care conscience requirements of the final rule would could affect family well-being. If the protection statutes.’’ therefore result in a cost savings of determination is affirmative, then the Sections 88.2 through 88.5 of the 2008 $43.6 million each year to the health Department or agency must prepare an Final Rule have been removed. Section care industry. impact assessment to address criteria 88.2 contains definitions of terms used The RFA requires agencies to analyze specified in the law. This final rule will in the Federal health care provider options for regulatory relief of small not have an impact on family wellbeing,

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as defined in the Act, because it affects 2. The accuracy of our estimate of the federal health care provider conscience only regulated entities and eliminates information collection burden. protection statutes by programs or costs that would otherwise be imposed 3. The quality, utility, and clarity of entities that receive Federal financial on those entities. the information to be collected. assistance from the Department. The 4. Recommendations to minimize the new information collection provisions VIII. Paperwork Reduction Act information collection burden on the associated with this final rule will not Information Collection affected public, including automated go into effect until approved by OMB. This final rule eliminates collection techniques. HHS will separately post a notice in the requirements that would be imposed by Under the PRA, the time, effort, and Federal Register at that time. the 2008 Final Rule. The 60-day financial resources necessary to meet the information collection requirements The table below reflects the Office for comment period on the information Civil Rights current complaint receipts collection requirements of the 2008 referenced in this section are to be considered. We explicitly seek, and will under its other civil rights enforcement Final Rule expired on February 27, consider, public comment on our authorities. HHS does not expect the 2009, and OMB approval for the assumptions as they relate to the PRA burden to increase measurably as a information collection requirements requirements summarized in this result of this provision. will not be sought. section. To comment on this collection Estimated Annualized Burden Table New Paperwork Collection Act of information or to obtain copies of the Information for Complaints supporting statement and any related Individuals may file written forms for the proposed paperwork complaints with the Office for Civil Under the Paperwork Reduction Act collections referenced above, e-mail Rights when they believe they have of 1995, we are required to provide 60- your comment or request, including been discriminated against on the basis day notice in the Federal Register and your address and phone number to of race, color, national origin, age, to solicit public comment before a [email protected], or call disability, and, in certain circumstances, collection of information requirement is the Reports Clearance Office on (202) sex and religion by programs or entities submitted to the Office of Management 690–6162. Written comments and that receive Federal financial assistance and Budget (OMB) for review and recommendations for the proposed from the Department of Health and approval. To fairly evaluate whether an information collections must be directed Human Services. The table below information collection should be to the OS Paperwork Clearance Officer includes: The annual number of approved by OMB, section 3506(c)(2)(A) at the above e-mail address within 60 respondents to the Office for Civil of the Paperwork Reduction Act of 1995 days. Rights regarding all the authorities that requires that we solicit comment on the 45 CFR part 88, § 88.2 provides that it enforces; the frequency of submission, following issues: individuals or entities may file written including recordkeeping and reporting 1. The need for the information complaints with the Department’s Office on occasion; and the affected public, collection and its usefulness in carrying for Civil Rights if they believe they have including not-for-profit entities and out the proper functions of our agency. been discriminated against under the individuals.

Number of Average Forms Type of Number of responses per burden hours Total burden (if necessary) respondent respondents respondent per response hours

Civil Rights Complaint Form ...... Individuals or Not-for-profit entities .. 3037 1 45/60 2278

Total ...... 3037 ...... 2278

List of Subjects in 45 CFR Part 88 PART 88—ENSURING THAT 111–117, Div. D, Sec. 508(d), 123 Stat. DEPARTMENT OF HEALTH AND 3034, 3279–80, referred to collectively Abortion, Civil rights, Colleges and HUMAN SERVICES FUNDS DO NOT as the ‘‘federal health care provider universities, Employment, Government SUPPORT COERCIVE OR ’’ contracts, Government employees, Grant conscience protection statutes. DISCIMINATORY POLICIES OR programs, Grants administration, Health ■ PRACTICES IN VIOLATION OF 4. Remove §§ 88.2 through 88.5. care, Health insurance, Health FEDERAL LAW ■ professions, Hospitals, Insurance 5. Redesignate § 88.6 as § 88.2. companies, Laboratories, Medicaid, ■ 1. The authority citation for part 88 is ■ 6. Revise newly designated § 88.2 to Medical and dental schools, Medical revised to read as follows: read as follows: research, Medicare, Mental health programs, Nursing homes, Public Authority: 5 U.S.C. 301. § 88.2 Complaint handling and health, Religious discrimination, ■ 2. The heading of part 88 is revised to investigating. Religious liberties, Reporting and read as set forth above. The Office for Civil Rights (OCR) of recordkeeping requirements, Rights of ■ 3. Revise § 88.1 to read as follows: the Department of Health and Human conscience, Scientists, State and local § 88.1 Purpose. Services is designated to receive governments, Sterilization, Students. complaints based on the Federal health The purpose of this part is to provide Dated: February 17, 2011. care provider conscience protection for the enforcement of the Church Kathleen Sebelius, Amendments, 42 U.S.C. 300a–7, section statutes. OCR will coordinate the Secretary. 245 of the Public Health Service Act, 42 handling of complaints with the For the reasons set forth in the U.S.C. 238n, and the Weldon Departmental funding component(s) preamble, the Department amends 45 Amendment, Consolidated from which the entity, to which a CFR part 88, as set forth below: Appropriations Act, 2010, Public Law

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complaint has been filed, receives funding. [FR Doc. 2011–3993 Filed 2–18–11; 11:15 am] BILLING CODE P

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Proposed Rules Federal Register Vol. 76, No. 36

Wednesday, February 23, 2011

This section of the FEDERAL REGISTER • Postal Mail/Commercial Delivery: In the 1920s, the South American contains notices to the public of the proposed Please send one copy of your comment cactus moth was introduced into issuance of rules and regulations. The to Docket No. APHIS–2006–0077, Australia and other areas as a biological purpose of these notices is to give interested Regulatory Analysis and Development, control agent of invasive prickly pear persons an opportunity to participate in the PPD, APHIS, Station 3A–03.8, 4700 cactus (Opuntia spp.). Its success led to rule making prior to the adoption of the final rules. River Road Unit 118, Riverdale, MD its introduction into the Caribbean and 20737–1238. Please state that your Hawaii in the 1950s. In 1989 it was comment refers to Docket No. APHIS– detected in southern Florida. More DEPARTMENT OF AGRICULTURE 2006–0077. recently, South American cactus moth Reading Room: You may read any has been discovered in other parts of Animal and Plant Health Inspection comments that we receive on this Florida, as well as in Alabama, Georgia, Service docket in our reading room. The reading Louisiana, Mississippi, and South room is located in room 1141 of the Carolina, and it continues to spread 7 CFR Parts 318 and 319 USDA South Building, 14th Street and north and west. [Docket No. APHIS–2006–0077] Independence Avenue SW., The Southwest United States and Washington, DC. Normal reading room Mexico are home to 114 native species RIN 0579–AD32 hours are 8 a.m. to 4:30 p.m., Monday of Opuntia, which are highly valued for through Friday, except holidays. To be their ecological and agricultural uses. South American Cactus Moth; sure someone is there to help you, The rooting characteristics of Opuntia Territorial and Import Regulations please call (202) 690–2817 before spp. reduce wind and rain erosion, AGENCY: Animal and Plant Health coming. encouraging the growth of other plants Inspection Service, USDA. Other Information: Additional in degraded areas. In addition, many ACTION: Proposed rule. information about APHIS and its species of birds, mammals, reptiles, and programs is available on the Internet at insects eat, nest in, or otherwise rely on SUMMARY: We are proposing to amend http://www.aphis.usda.gov. Opuntia spp. for survival. Opuntia spp. the Hawaiian and territorial quarantine FOR FURTHER INFORMATION CONTACT: Dr. are also important sources of food, regulations to prohibit the movement of Robyn Rose, National Program Lead, medicine, cosmetics, and dye. In South American cactus moth host Emergency and Domestic Programs, Mexico, Opuntia spp. are an important material, including nursery stock and PPQ, APHIS, 4700 River Rd. Unit 26, agricultural commodity, comprising 1.5 plant parts for consumption to the Riverdale, MD 20737–1236; (301) 734– percent of total agricultural production mainland and Guam from Hawaii, 7121. and representing 2.5 percent of the Puerto Rico, and the U.S. Virgin Islands, SUPPLEMENTARY INFORMATION: value of agricultural production. In the and to allow South American cactus Southwest United States, Opuntia spp. moth host material to be moved among Background are only a minor agricultural crop, but Hawaii, Puerto Rico, and the U.S. Virgin The South American cactus moth are popular plants in the landscaping Islands. We are also proposing to amend (Cactoblastis cactorum) is a grayish- and ornamental nursery industries. the foreign quarantine regulations to brown moth with a wingspan of 22 to Opuntia spp. can also be an important prohibit the importation of South 35 millimeters (approximately 0.86 to source of emergency forage for cattle American cactus moth host material, 1.4 inches) that is indigenous to grazing during periods of drought. If the including nursery stock and plant parts Argentina, southern Brazil, Paraguay, South American cactus moth were to for consumption, from any country or and Uruguay. It is a serious quarantine spread to these areas, there would be portion of a country infested with South pest of Opuntia spp., and an occasional significant environmental and economic American cactus moth. These actions pest of Nopalea spp., Cylindropuntia damage. would help prevent the introduction or spp., and Consolea spp., four closely In a final rule published in the spread of South American cactus moth related genera of the family Cactaceae. Federal Register on June 8, 2009 (74 FR into noninfested areas of the United All plant parts, except seeds, of these 27071–27076, Docket No. APHIS–2006– States, relieve unnecessary restrictions species can be infested with South 0153), and effective July 8, 2009, the on movement of host material among American cactus moth. After an Animal and Plant Health Inspection infested areas of the United States, and incubation period following mating, the Service (APHIS) established regulations provide consistency to the regulations. female South American cactus moth quarantining the States of Alabama, DATES: We will consider all comments deposits an egg stick resembling a Florida, Georgia, Mississippi, and South that we receive on or before April 25, cactus spine on the host plant. The egg Carolina, and restricting the movement 2011. stick, which consists of 70 to 90 eggs, of South American cactus moth host ADDRESSES: You may submit comments hatches in 25 to 30 days, and the larvae material from those States to prevent the by either of the following methods: bore into the cactus pad to feed, artificial dissemination of the South • Federal eRulemaking Portal: Go to eventually hollowing it out and killing American cactus moth into noninfested http://www.regulations.gov/fdmspublic/ the plant. Within a short period of time, areas of the United States. In addition, component/ the South American cactus moth can in an interim rule published in the main?main=DocketDetail&d=APHIS– destroy whole stands of cactus. Since Federal Register and effective on July 2006–0077 to submit or view comments the South American cactus moth larvae 15, 2010 (75 FR 41073–41074, Docket and to view supporting and related are internal feeders, they are difficult to No. APHIS–2010–0037), we added materials available electronically. detect during normal inspection. Louisiana to the list of States

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quarantined due to the presence of accordance with 7 CFR part 305.2 areas. Therefore, we are also proposing South American cactus moth. APHIS, in However, the only treatment listed in to amend the fruits and vegetables cooperation with the Agricultural the PPQ Treatment Manual for pests of manuals for Hawaii and Puerto Rico to Research Service and funding provided cactus that feed internally is T201-f-2, a allow South American cactus moth host by the Government of Mexico, is treatment for borers and soft scales that plants and plant parts to be moved continuing to test and implement a consists of fumigation using methyl between these areas without restriction. sterile insect release program along the bromide. There is no data to support the Finally, we are proposing to amend the U.S. Gulf Coast. In support of our sterile effectiveness of this treatment against fruits and vegetables manuals for insect program and domestic regulations South American cactus moth. Hawaii and Puerto Rico by removing the and to make our regulations for the As stated in § 305.3, APHIS may add, obsolete term ‘‘cactus borer’’ in reference importation and interstate movement of revise, or remove a treatment schedule to C. cactorum and replacing it with the South American cactus moth host if necessary by publishing a notice current term ‘‘South American cactus material consistent, we are proposing to informing the public of the reasoning moth.’’ amend our territorial and import behind the addition, revision, or These changes are necessary because regulations to restrict the movement of removal, and taking comment on the Hawaii, Puerto Rico, and the U.S. Virgin South American cactus moth host action. Following the comment period, Islands are infested with South material into the continental United we will consider comments received on American cactus moth and there is no States. the notice and publish a followup notice control program for South American announcing our determination with cactus moth in those areas. In addition, Hawaiian and Territorial Regulations regard to the action. In accordance with there is no trade or anticipated trade of The regulations in 7 CFR part 318 that process, we are proposing to amend South American cactus moth host (referred to below as the Hawaiian and the PPQ Treatment Manual by adding material among Hawaii and the territorial regulations) govern the the words ‘‘(other than South American territories or between Hawaii and the movement of plants and plant products, cactus moth (Cactoblastis cactorum))’’ territories and the mainland United ‘‘ ’’ for consumption and propagation, from after the word borers under the States. ‘‘ ’’ These changes would prohibit the Hawaii and from Guam, Puerto Rico, the heading Pest in treatment schedule movement of unprocessed South U.S. Virgin Islands, the Commonwealth T201-f-2. Except as otherwise noted, the American cactus moth host material, of the Northern Mariana Islands, and all interstate movement of all cactus plants such as nursery stock, from Hawaii, other U.S. territories and possessions or parts thereof from Hawaii is currently Puerto Rico, and the U.S. Virgin Islands between themselves and into the prohibited and the interstate movement into or through the continental United continental United States. In addition, of cactus plants or parts thereof from States and all other noninfested the name and origin of all fruits and Puerto Rico and the U.S. Virgin Islands territories and possessions as well as vegetables authorized movement under is restricted unless the cactus plant is allow for the unrestricted movement of 7 CFR part 318, as well as the applicable grown in approved growing media and plants and plant products that are not requirements for their movement, may treated in accordance with 7 CFR part hosts of the South American cactus be found in the fruits and vegetables 1 305. Since these requirements were put moth from Hawaii, Puerto Rico, or the manuals for Hawaii and Puerto Rico. into place, we have determined that U.S. Virgin Islands into or through the The Hawaiian and territorial South American cactus moth does not continental United States. regulations currently restrict the infest all species of cactus. Therefore, Importation of Plants for Propagation movement of all cactus plants or parts we are proposing to amend the table in thereof from Hawaii, Puerto Rico, and paragraph (a) of § 318.13–16 by The regulations in 7 CFR part 319 the U.S. Virgin Islands, which are removing the entries for cactus moving (referred to below as the import known to be infested with South interstate from Puerto Rico and the U.S. regulations) govern the movement into American cactus moth. Specifically, the Virgin Islands. We would amend the the United States from all foreign regulations in § 318.13–1 prohibit the Puerto Rico fruits and vegetables countries, of plants and plant products interstate movement of all cut flowers manual to indicate that the interstate for consumption and propagation. The and fruits and vegetables and plants and movement of South American cactus regulations in §§ 319.37 through portions of plants from Hawaii, which moth host cacti to the mainland United 319.37–14 govern the importation of includes cactus plants or parts thereof, States is prohibited. We are also plants and plant products, including unless they are specifically approved for proposing to amend the fruits and nursery stock, for propagation. The interstate movement or frozen or vegetables manuals for Hawaii and import regulations in § 319.37–2(b)(5) processed to sufficiently preclude the Puerto Rico to allow cacti that are not currently prohibit the importation of all survival of any pests in accordance with South American cactus moth hosts to be cactus cuttings for propagation, without §§ 318.13 and 318.14, respectively. The moved between Hawaii and the roots or branches, that are greater than regulations in § 318.13–16 limit the continental United States and between 153 millimeters (approximately 6 interstate movement of all cactus plants Puerto Rico, the U.S. Virgin Islands, and inches) in diameter or greater than 1.2 or parts thereof from Puerto Rico and the continental United States. meters (approximately 4 feet) in length the Virgin Islands to those cactus plants In addition, as Hawaii, Puerto Rico, from all countries except Canada unless that are bare-rooted or grown in an and the U.S. Virgin Islands are already imported by the United States approved growing medium listed in infested with South American cactus Department of Agriculture for scientific § 318.13–2 and that are treated in moth, there is no reason to prohibit the or experimental purposes under the movement of South American cactus conditions in § 319.37–2(c). APHIS 1 The fruits and vegetables manuals for Hawaii moth host plants or parts among these further prohibits in § 319.37–2(b)(6) the and Puerto Rico can be found on the Internet at importation of all cactus plants for http://www.aphis.usda.gov/import_export/plants/ 2 Treatment schedules approved for use under 7 propagation, from all countries, except manuals/ports/downloads/Hawaii.pdf and http:// CFR part 305 are available in the PPQ Treatment Canada, that exceed 460 millimeters www.aphis.usda.gov/import_export/plants/ Manual at http://www.aphis.usda.gov/ manuals/ports/downloads/puerto_rico.pdf, import_export/plants/manuals/ports/downloads/ (approximately 18 inches) in length respectively. treatment.pdf. from the soil line to the farthest terminal

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growing point and whose growth habits ‘‘nopales,’’ of Opuntia species cacti is American cactus moth, only the simulate the woody habits of trees and currently authorized only from Dominican Republic is known to have shrubs unless imported by the United Colombia and Mexico. Importation of shipped host plant parts to the United States Department of Agriculture for this fruit from all other countries is States in recent years. Virtually all scientific or experimental purposes prohibited. We are proposing to amend imports of South American cactus moth under the conditions in § 319.37–2(c). the FAVIR database in order to remove host plant parts come from Mexico, a The current size restrictions were the Bahamas, the Dominican Republic, country that is not currently infested designed to make it easier to handle Haiti, and Jamaica from the list of with the pest. In 2009, Mexico exported imported cacti during inspection rather countries authorized to import tuna or 2,266 metric tons of nopales to the than as a way to prevent South nopales because those countries have United States valued at over $2 million. American cactus moth or other cactus been determined to be infested with The proposed rule, therefore, should pests from entering the United States. South American cactus moth. have little impact on U.S. imports of As most cactus plants and cuttings Any country that is not authorized to South American cactus moth host plant imported for propagation are smaller export South American cactus moth parts. than these size limits, the current host material to the United States for The restriction on the movement of regulations effectively permit the entry consumption would be able to request South American cactus moth host plant of all cactus plants and cuttings, approval to import South American parts from Hawaii, Puerto Rico, and the including South American cactus moth cactus moth host material. APHIS U.S. Virgin Islands to the mainland host species, into the United States. would evaluate the request and prepare United States should have little or no Therefore, we are proposing to amend a pest risk assessment and risk impact. For one, such movement from the table in § 319.37–2(a) to prohibit the management document in order to Hawaii is already prohibited, and the importation of all cactus moth host determine whether the commodity may interstate movement of cactus plants or material (excluding seeds) from areas be safely imported into the continental parts thereof from Puerto Rico and the infested with South American cactus United States without presenting a risk U.S. Virgin Islands is limited. moth. These changes would prohibit the of introducing South American cactus The rule would allow South movement of cactus moth nursery stock moth into noninfested areas of the American cactus moth host plants and into the United States from all countries United States. plant parts to be moved between infested with South American cactus Executive Order 12866 and Regulatory Hawaii, Puerto Rico, and the U.S. Virgin moth. Countries infested with South Flexibility Act Islands. Such movement should have American cactus moth 3 include: little impact, as those areas are already Antigua, Argentina, Ascension Island, This rule has been determined to be infested with South American cactus Australia, Bahamas, Botswana, Brazil, not significant for the purposes of moth, and there is no program in those Cayman Islands, Cuba, Dominican Executive Order 12866 and, therefore, areas to control the pest. To the extent Republic, Dominica, Guadeloupe, Haiti, has not been reviewed by the Office of that it would prevent the spread of Jamaica, Lesotho, Mauritius, Montserrat, Management and Budget. South American cactus moth on the We are proposing to amend the Namibia, Nevis, New Caledonia, mainland, the rule would benefit U.S. Hawaiian and territorial quarantine Paraguay, South Africa, St. Helena, St. entities, primarily those in the Lucia, St. Vincent, St. Kitts, Swaziland, regulations to prohibit the movement of South American cactus moth host ornamental nursery and landscape Tanzania, Uruguay, and the Republic of industries in the Southwest. Most Zimbabwe. material, including nursery stock and plant parts for consumption to the commercial nurseries that produce Importation of Fruits and Vegetables mainland and Guam from Hawaii, prickly pear cacti are located in Arizona, followed by California. In The regulations in §§ 319.56–1 Puerto Rico, and the U.S. Virgin Islands, Arizona, there are an estimated 40 to 50 through 319.56–50 govern the and to allow South American cactus producers in the Phoenix area alone; in importation of plants and plant moth host material to be moved among California, there are an estimated 30 products intended for consumption. Hawaii, Puerto Rico, and the U.S. Virgin growers of cacti. Many, if not most, Under § 319.564(a), fruits or vegetables Islands. We are also proposing to amend 4 that the Administrator has determined the foreign quarantine regulations to cactus growers are small in size. Under these circumstances, the may be imported subject to one or more prohibit the importation of South Administrator of the Animal and Plant of the designated phytosanitary American cactus moth host material, Health Inspection Service has measures cited in § 319.56–4(b), are including nursery stock and plant parts determined that this action would not listed in the Fruits and Vegetables for consumption, from any country or have a significant economic impact on Import Requirements (FAVIR) database portion of a country infested with South a substantial number of small entities. found on the APHIS Web site at http: American cactus moth. //www.aphis.usda.gov/favir/info.shtml. Published data on U.S. trade do not Executive Order 12988 offer the level of detail necessary to Currently, the importation into the This rule has been reviewed under identify South American cactus moth United States of the fruit of Opuntia Executive Order 12988, Civil Justice host plants and plant parts moving in species cacti, called ‘‘tuna,’’ is Reform. If this rule is adopted: (1) All commerce specifically. Accordingly, authorized only from the Bahamas, State and local laws and regulations that data on the volume (and value) of U.S. Belize, Chile, Colombia, the Dominican are inconsistent with this rule will be imports of those host plants and plant Republic, Guatemala, Haiti, Israel, Italy, preempted; (2) no retroactive effect will parts are not available from that source. Jamaica, and Mexico. The importation be given to this rule; and (3) Nevertheless, APHIS and Agricultural of prickly pear pads, also called administrative proceedings will not be Marketing Service internal reports, as required before parties may file suit in 3 The presence of South American cactus moth in well as informed APHIS staff, indicate court challenging this rule. these countries was confirmed by literature from that the volume of host plant and host the European and Mediterranean Plant Protection Organization, the International Atomic Energy plant part imports from the countries 4 Source: Irish, M. 2001. The Ornamental Prickly Agency, and the Centre for Agricultural Bioscience infested with the pest is negligible. Of Pear Industry in the Southwest United States. International. the countries infested with South Florida Entomologist 84(4).

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Paperwork Reduction Act recordkeeping requirements, Rice, PART 319—FOREIGN QUARANTINE This proposed rule contains no new Vegetables. NOTICES information collection or recordkeeping Accordingly, we are proposing to requirements under the Paperwork amend 7 CFR parts 318 and 319 as 3. The authority citation for part 319 Reduction Act of 1995 (44 U.S.C. 3501 follows: continues to read as follows: et seq.). PART 318—STATE OF HAWAII AND Authority: 7 U.S.C. 450, 7701–7772, and List of Subjects TERRITORIES QUARANTINE NOTICES 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 7 CFR Part 318 1. The authority citation for part 318 4. In § 319.37–2, paragraph (a), the Cotton, Cottonseeds, Fruits, Guam, continues to read as follows: table is amended by adding, in Hawaii, Plant diseases and pests, Puerto Authority: 7 U.S.C. 7701–7772 and 7781– alphabetical order, new entries for Rico, Quarantine, Transportation, 7786; 7 CFR 2.22, 2.80, and 371.3. Vegetables, Virgin Islands. Consolea spp., Cylindropuntia spp., § 318.13–6 [Amended] Nopalea spp., and Opuntia spp. to read 7 CFR Part 319 2. In § 318.13–16, the table in as follows: Coffee, Cotton, Fruits, Imports, Logs, paragraph (a) is amended under Puerto § 319.37–2 Prohibited articles. Nursery stock, Plant diseases and pests, Rico and U.S. Virgin Islands by Quarantine, Reporting and removing the entries for ‘‘Cactus’’. (a) * * *

Plant pests existing in the Prohibited article (in- places named and capable of cludes seeds only if spe- Foreign places from which prohibited being transported with the pro- cifically mentioned) hibited article

******* Consolea spp...... Antigua, Argentina, Ascension Island, Australia, Bahamas, Botswana, Brazil, Cay- Cactoblastis cactorum (South man Islands, Cuba, Dominican Republic, Dominica, Guadeloupe, Haiti, Ja- American cactus moth). maica, Lesotho, Mauritius, Montserrat, Namibia, Nevis, New Caledonia, Para- guay, South Africa, St. Helena, St. Lucia, St. Vincent, St. Kitts, Tanzania, Uru- guay, Republic of Zimbabwe.

******* Cylindropuntia spp...... Antigua, Argentina, Ascension Island, Australia, Bahamas, Botswana, Brazil, Cay- Cactoblastis cactorum (South man Islands, Cuba, Dominican Republic, Dominica, Guadeloupe, Haiti, Ja- American cactus moth). maica, Lesotho, Mauritius, Montserrat, Namibia, Nevis, New Caledonia, Para- guay, South Africa, St. Helena, St. Lucia, St. Vincent, St. Kitts, Tanzania, Uru- guay, Republic of Zimbabwe.

******* Nopalea spp...... Antigua, Argentina, Ascension Island, Australia, Bahamas, Botswana, Brazil, Cay- Cactoblastis cactorum (South man Islands, Cuba, Dominican Republic, Dominica, Guadeloupe, Haiti, Ja- American cactus moth). maica, Lesotho, Mauritius, Montserrat, Namibia, Nevis, New Caledonia, Para- guay, South Africa, St. Helena, St. Lucia, St. Vincent, St. Kitts, Tanzania, Uru- guay, Republic of Zimbabwe.

******* Opuntia spp...... Antigua, Argentina, Ascension Island, Australia, Bahamas, Botswana, Brazil, Cay- Cactoblastis cactorum (South man Islands, Cuba, Dominican Republic, Dominica, Guadeloupe, Haiti, Ja- American cactus moth). maica, Lesotho, Mauritius, Montserrat, Namibia, Nevis, New Caledonia, Para- guay, South Africa, St. Helena, St. Lucia, St. Vincent, St. Kitts, Tanzania, Uru- guay, Republic of Zimbabwe.

*******

* * * * * DEPARTMENT OF ENERGY SUMMARY: The U.S. Department of Done in Washington, DC, this 16th day of Energy (DOE) is re-opening the public February 2011. [Docket ID: DOE–HQ–2010–0002] comment period for proposed Kevin Shea, amendments to its regulations governing 10 CFR Part 1021 compliance with the National Acting Administrator, Animal and Plant Environmental Policy Act (NEPA), made Health Inspection Service. RIN 1990–AA34 available for public comment on January [FR Doc. 2011–3991 Filed 2–22–11; 8:45 am] 3, 2011 (76 FR 214). This is being done BILLING CODE 3410–34–P National Environmental Policy Act in response to a request on behalf of Implementing Procedures multiple organizations. AGENCY: Office of the General Counsel, DATES: The public comment period U.S. Department of Energy. ended on February 17, 2011. The ACTION: Proposed rule: re-opening of comment period is being re-opened and public comment period. will close on March 7, 2011.

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ADDRESSES: Submit comments, labeled Issued in Washington, DC, on February 16, 30, West Building Ground Floor, Room ‘‘DOE NEPA Implementing Procedures, 2011. W12–140, 1200 New Jersey Avenue, SE., RIN 1990–AA34,’’ by one of the Eric J. Fygi, Washington, DC 20590. following methods: Acting General Counsel. • Hand Delivery: U.S. Department of 1. Federal eRulemaking Portal: [FR Doc. 2011–3981 Filed 2–22–11; 8:45 am] Transportation, Docket Operations, M– 30, West Building Ground Floor, Room http://www.regulations.gov. Follow the BILLING CODE 6450–01–P W12–40, 1200 New Jersey Avenue, SE., online instructions for submitting Washington, DC, between 9 a.m. and comments electronically. This DEPARTMENT OF TRANSPORTATION 5 p.m., Monday through Friday, except rulemaking is assigned Docket ID: DOE– Federal holidays. HQ–2010–0002. Comments may be Federal Aviation Administration For service information identified in entered directly on the Web site. this proposed AD, contact Bombardier, Electronic files may be submitted to this 14 CFR Part 39 Inc., Q–Series Technical Help Desk, 123 Web site. Garratt Boulevard, Toronto, Ontario [Docket No. FAA–2011–0043; Directorate 2. Mail: Mail comments to NEPA Identifier 2010–NM–192–AD] M3K 1Y5, Canada; telephone 416–375– Rulemaking Comments, Office of NEPA 4000; fax 416–375–4539; e-mail Policy and Compliance (GC–54), U.S. RIN 2120–AA64 [email protected]; Internet http://www.bombardier.com. Department of Energy, 1000 Airworthiness Directives; Bombardier, Independence Avenue, SW., You may review copies of the Inc. Model DHC–8–400 Series referenced service information at the Washington, DC 20585. Because Airplanes security screening may delay mail sent FAA, Transport Airplane Directorate, through the U.S. Postal Service, DOE AGENCY: Federal Aviation 1601 Lind Avenue, SW., Renton, encourages electronic submittal of Administration (FAA), DOT. Washington. For information on the availability of this material at the FAA, comments. ACTION: Notice of proposed rulemaking (NPRM). call 425–227–1221. FOR FURTHER INFORMATION CONTACT: For Examining the AD Docket general information about DOE’s NEPA SUMMARY: We propose to adopt a new procedures, contact Ms. Carol airworthiness directive (AD) for the You may examine the AD docket on Borgstrom, Director, Office of NEPA products listed above. This proposed the Internet at http:// Policy and Compliance, at 202–586– AD results from mandatory continuing www.regulations.gov; or in person at the Docket Operations office between 9 a.m. 4600 or leave a message at 800–472– airworthiness information (MCAI) and 5 p.m., Monday through Friday, 2756. For questions concerning how to originated by an aviation authority of except Federal holidays. The AD docket comment on this proposed rule, contact another country to identify and correct an unsafe condition on an aviation contains this proposed AD, the Ms. Yardena Mansoor, Office of NEPA regulatory evaluation, any comments Policy and Compliance, at product. The MCAI describes the unsafe condition as: received, and other information. The [email protected] or 202–586–9326. street address for the Docket Operations During production quality inspections of SUPPLEMENTARY INFORMATION: On the aeroplane fuel motive flow system, it was office (telephone (800) 647–5527) is in January 3, 2011, DOE published a discovered that some motive flow check the ADDRESSES section. Comments will Notice of Proposed Rulemaking in the valves (MFCV) were manufactured with an be available in the AD docket shortly Federal Register (76 FR 214) to invite outlet fitting containing red anodized after receipt. public comment on proposed threads. These MFCV do not provide FOR FURTHER INFORMATION CONTACT: amendments to its existing regulations adequate electrical bonding between the James Delisio, Aerospace Engineer, valve and the adjacent fitting. Airframe and Mechanical Systems governing compliance with NEPA and In the absence of proper electrical bonding announce a public hearing. The notice within the motive flow system, the aeroplane Branch, ANE–171, FAA, New York provided for the submission of fuel tank could be exposed to ignition Aircraft Certification Office (ACO), 1600 comments by February 17, 2011, sources in the case of a lightning strike. Stewart Avenue, Suite 410, Westbury, including at a public hearing held on * * * * * New York 11590; telephone (516) 228– February 4, 2011. The National Wildlife 7321; fax (516) 794–5531. The unsafe condition is the potential for SUPPLEMENTARY INFORMATION: Federation, on behalf of itself and nine ignition sources inside the fuel tanks, other organizations, requested DOE to which, in combination with flammable Comments Invited extend the comment period to allow fuel vapors, could result in a fuel tank We invite you to send any written additional time for review of the explosion and consequent loss of the relevant data, views, or arguments about proposed rule and the submission of airplane. The proposed AD would this proposed AD. Send your comments comments. DOE has determined that re- require actions that are intended to to an address listed under the opening the public comment period in address the unsafe condition described ADDRESSES section. Include ‘‘Docket No. response to this request is appropriate in the MCAI. FAA–2011–0043; Directorate Identifier and hereby re-opens the comment DATES: We must receive comments on 2010–NM–192–AD’’ at the beginning of period. DOE will consider any this proposed AD by April 11, 2011. your comments. We specifically invite comments received between February ADDRESSES: You may send comments by comments on the overall regulatory, 23, 2011 and March 7, 2011, and deems any of the following methods: economic, environmental, and energy any comments received between • Federal eRulemaking Portal: Go to aspects of this proposed AD. We will publication of the Notice of Proposed http://www.regulations.gov. Follow the consider all comments received by the Rulemaking on January 3, 2011, and instructions for submitting comments. closing date and may amend this March 7, 2011, to be timely submitted. • Fax: (202) 493–2251. proposed AD based on those comments. • Mail: U.S. Department of We will post all comments we Transportation, Docket Operations, M– receive, without change, to http://

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www.regulations.gov, including any Differences Between This AD and the distribution of power and personal information you provide. We MCAI or Service Information responsibilities among the various will also post a report summarizing each We have reviewed the MCAI and levels of government. substantive verbal contact we receive related service information and, in For the reasons discussed above, I about this proposed AD. general, agree with their substance. But certify this proposed regulation: ‘‘ we might have found it necessary to use 1. Is not a significant regulatory Discussion ’’ different words from those in the MCAI action under Executive Order 12866; 2. Is not a ‘‘significant rule’’ under the Transport Canada Civil Aviation to ensure the AD is clear for U.S. DOT Regulatory Policies and Procedures (TCCA), which is the aviation authority operators and is enforceable. In making (44 FR 11034, February 26, 1979); and for Canada, has issued Canadian these changes, we do not intend to differ 3. Will not have a significant Airworthiness Directive CF–2010–21, substantively from the information economic impact, positive or negative, provided in the MCAI and related dated July 20, 2010 (referred to after this on a substantial number of small entities service information. as ‘‘the MCAI’’), to correct an unsafe under the criteria of the Regulatory condition for the specified products. We might also have proposed different actions in this AD from those Flexibility Act. The MCAI states: We prepared a regulatory evaluation in the MCAI in order to follow FAA of the estimated costs to comply with During production quality inspections of policies. Any such differences are the aeroplane fuel motive flow system, it was this proposed AD and placed it in the highlighted in a NOTE within the discovered that some motive flow check AD docket. proposed AD. valves (MFCV) were manufactured with an List of Subjects in 14 CFR Part 39 outlet fitting containing red anodized Costs of Compliance Air transportation, Aircraft, Aviation threads. These MFCV do not provide Based on the service information, we adequate electrical bonding between the safety, Incorporation by reference, estimate that this proposed AD would valve and the adjacent fitting. Safety. affect about 67 products of U.S. registry. In the absence of proper electrical bonding We also estimate that it would take within the motive flow system, the aeroplane The Proposed Amendment fuel tank could be exposed to ignition about 33 work-hours per product to Accordingly, under the authority sources in the case of a lightning strike. comply with the basic requirements of delegated to me by the Administrator, This [TCCA] directive is issued to [do a this proposed AD. The average labor the FAA proposes to amend 14 CFR part general visual inspection to] verify the proper rate is $85 per work-hour. Required 39 as follows: configuration of the MFCV and if required, parts would cost about $130 per replace the affected MFCV with a MFCV that product. Based on these figures, we PART 39—AIRWORTHINESS has a chemically filmed (gold color) outlet estimate the cost of the proposed AD on DIRECTIVES valve fitting, which provides adequate U.S. operators to be $196,645, or $2,935 electrical bonding. per product. 1. The authority citation for part 39 continues to read as follows: Authority for This Rulemaking The unsafe condition is the potential for Authority: 49 U.S.C. 106(g), 40113, 44701. ignition sources inside the fuel tanks, Title 49 of the United States Code which, in combination with flammable specifies the FAA’s authority to issue § 39.13 [Amended] fuel vapors, could result in a fuel tank rules on aviation safety. Subtitle I, 2. The FAA amends § 39.13 by adding explosion and consequent loss of the section 106, describes the authority of the following new AD: airplane. You may obtain further the FAA Administrator. ‘‘Subtitle VII: Bombardier, Inc.: Docket No. FAA–2011– information by examining the MCAI in Aviation Programs,’’ describes in more 0043; Directorate Identifier 2010–NM– the AD docket. detail the scope of the Agency’s 192–AD. authority. Relevant Service Information We are issuing this proposed Comments Due Date rulemaking under the authority (a) We must receive comments by April 11, Bombardier has issued Service described in ‘‘Subtitle VII, Part A, 2011. Bulletin 84–28–08, dated March 11, Subpart III, Section 44701: General 2010. The actions described in this Affected ADs requirements.’’ Under that section, service information are intended to (b) None. Congress charges the FAA with correct the unsafe condition identified promoting safe flight of civil aircraft in Applicability in the MCAI. air commerce by prescribing regulations (c) This AD applies to Bombardier, Inc. FAA’s Determination and Requirements for practices, methods, and procedures Model DHC–8–400, –401, and –402 of This Proposed AD the Administrator finds necessary for airplanes, certificated in any category; having safety in air commerce. This regulation serial numbers 4001 through 4190 inclusive, 4199 through 4201 inclusive, and 4203 This product has been approved by is within the scope of that authority the aviation authority of another through 4216 inclusive; equipped with a because it addresses an unsafe condition motive flow check valve (MFCV) having part country, and is approved for operation that is likely to exist or develop on number (P/N) 2960018–101. in the United States. Pursuant to our products identified in this rulemaking bilateral agreement with the State of action. Subject Design Authority, we have been notified (d) Air Transport Association (ATA) of of the unsafe condition described in the Regulatory Findings America Code 28, Fuel. MCAI and service information We determined that this proposed AD Reason referenced above. We are proposing this would not have federalism implications (e) The mandatory continuing AD because we evaluated all pertinent under Executive Order 13132. This airworthiness information (MCAI) states: information and determined an unsafe proposed AD would not have a During production quality inspections of condition exists and is likely to exist or substantial direct effect on the States, on the aeroplane fuel motive flow system, it was develop on other products of the same the relationship between the national discovered that some motive flow check type design. Government and the States, or on the valves (MFCV) were manufactured with an

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outlet fitting containing red anodized (2) Airworthy Product: For any requirement developing hypoxia following a threads. These MFCV do not provide in this AD to obtain corrective actions from depressurization event. adequate electrical bonding between the a manufacturer or other source, use these DATES: We must receive comments on valve and the adjacent fitting. actions if they are FAA-approved. Corrective In the absence of proper electrical bonding actions are considered FAA-approved if they this proposed AD by April 11, 2011. within the motive flow system, the aeroplane are approved by the State of Design Authority ADDRESSES: You may send comments by fuel tank could be exposed to ignition (or their delegated agent). You are required any of the following methods: sources in the case of a lightning strike. to assure the product is airworthy before it • Federal eRulemaking Portal: Go to * * * * * is returned to service. http://www.regulations.gov. Follow the Related Information instructions for submitting comments. The unsafe condition is the potential for • Fax: 202–493–2251. ignition sources inside the fuel tanks, which, (k) Refer to TCCA Airworthiness Directive • in combination with flammable fuel vapors, CF–2010–21, dated July 20, 2010; and Mail: U.S. Department of could result in a fuel tank explosion and Bombardier Service Bulletin 84–28–08, dated Transportation, Docket Operations, M– consequent loss of the airplane. March 11, 2010; for related information. 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Compliance Issued in Renton, Washington on February 14, 2011. Washington, DC 20590. (f) You are responsible for having the • Hand Delivery: Deliver to Mail Kalene C. Yanamura, actions required by this AD performed within address above between 9 a.m. and 5 the compliance times specified, unless the Acting Manager, Transport Airplane p.m., Monday through Friday, except Directorate, Aircraft Certification Service. actions have already been done. Federal holidays. Actions [FR Doc. 2011–4011 Filed 2–22–11; 8:45 am] For service information identified in BILLING CODE 4910–13–P (g) Within 6,000 flight hours after the this proposed AD, contact B/E effective date of this AD, do a general visual Aerospace, 10800 Pflumm Road, inspection for red anodized threads of the Lenexa, Kansas 66215; telephone: 913– DEPARTMENT OF TRANSPORTATION outlet fitting of the MFCV having P/N 888–9800; fax: 913–469–8419; Internet: 2960018–101 installed in the left and right Federal Aviation Administration http://www.beaerospace.com. You may wing fuel tanks, in accordance with the review copies of the referenced service Accomplishment Instructions of Bombardier information at the FAA, Small Airplane Service Bulletin 84–28–08, dated March 11, 14 CFR Part 39 2010. If the MFCV has a chemical film Directorate, 901 Locust, Kansas City, [Docket No. FAA–2011–0139; Directorate Missouri 64106. For information on the coating (gold color) outlet fitting, no further Identifier 2010–CE–057–AD] action is required by AD, except as required availability of this material at the FAA, by paragraph (i) of this AD. RIN 2120–AA64 call 816–329–4148. (h) If during the inspection required by paragraph (g) of this AD, a MFCV having a Airworthiness Directives; B/E Examining the AD Docket red anodized check valve outlet fitting is Aerospace, Continuous Flow You may examine the AD docket on found: Before further flight, replace the Passenger Oxygen Mask Assembly, the Internet at http:// MFCV with a MFCV that has a chemical film Part Numbers 174006–(), 174080–(), www.regulations.gov; or in person at the coating (gold color) check valve outlet fitting, 174085–(), 174095–(), 174097–(), and Docket Management Facility between 9 in accordance with the Accomplishment 174098–() a.m. and 5 p.m., Monday through Instructions of Bombardier Service Bulletin Friday, except Federal holidays. The AD 84–28–08, dated March 11, 2010. AGENCY: Federal Aviation docket contains this proposed AD, the (i) As of the effective date of this AD, no Administration (FAA), DOT. person may install a replacement MFCV regulatory evaluation, any comments having P/N 2960018–101, with a red ACTION: Notice of proposed rulemaking received, and other information. The anodized check valve outlet fitting, on any (NPRM). street address for the Docket Office airplane. SUMMARY: We propose to adopt a new (phone: 800–647–5527) is in the FAA AD Differences airworthiness directive (AD) for the ADDRESSES section. Comments will be products listed above, except for those available in the AD docket shortly after Note 1: This AD differs from the MCAI receipt. and/or service information as follows: No that are currently affected by similar differences. action through any of five ADs FOR FURTHER INFORMATION CONTACT: applicable to Boeing products. This David Fairback, Aerospace Engineer, Other FAA AD Provisions proposed AD would require an Wichita Aircraft Certification Office, (j) The following provisions also apply to inspection/records check to determine FAA, 1801 Airport Road, Room 100, this AD: the manufacturer and part number of Wichita, Kansas 67209; telephone: (316) (1) Alternative Methods of Compliance the oxygen mask assemblies installed, 946–4154; fax: (316) 946–4107; e-mail: (AMOCs): The Manager, New York Aircraft an inspection to determine the [email protected]. Certification Office (ACO), ANE–170, FAA, has the authority to approve AMOCs for this manufacturing date and modification SUPPLEMENTARY INFORMATION: status if certain oxygen mask assemblies AD, if requested using the procedures found Comments Invited in 14 CFR 39.19. Send information to ATTN: are installed, and corrective action for Program Manager, Continuing Operational certain oxygen mask assemblies. This We invite you to send any written Safety, FAA, New York ACO, 1600 Stewart proposed AD was prompted by a report relevant data, views, or arguments about Avenue, Suite 410, Westbury, New York that several oxygen mask assemblies this proposal. Send your comments to 11590; telephone 516–228–7300; fax 516– with broken in-line flow indicators were an address listed under the ADDRESSES 794–5531. Before using any approved AMOC found following a mask deployment. We section. Include ‘‘Docket No. FAA– on any airplane to which the AMOC applies, are proposing this AD to prevent the in- 2011–0139; Directorate Identifier 2010– notify your appropriate principal inspector, ’’ or lacking a principal inspector, the manager line flow indicators of the oxygen mask CE–057–AD at the beginning of your of the local flight standards district office/ assembly from fracturing and comments. We specifically invite certificate holding district office. The AMOC separating, which could inhibit oxygen comments on the overall regulatory, approval letter must specifically reference flow to the masks. This condition could economic, environmental, and energy this AD. consequently result in occupants aspects of this proposed AD. We will

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consider all comments received by the • AD 2010–14–06, amendment 39– Relevant Service Information closing date and may amend this 16351 (75 FR 38014, July 1, 2010), for We reviewed B/E Aerospace Service proposed AD because of those certain Boeing Model 737–200, 737– Bulletin 174080–35–04, Rev 000, dated comments. 300, 737–400, and 737–500 series September 6, 2010. The service We will post all comments we airplanes identified in Boeing Special information describes procedures for receive, without change, to http:// Attention Service Bulletin 737–35– identifying an affected oxygen mask www.regulations.gov, including any 1099, Revision 1, dated April 23, 2009. personal information you provide. We Those ADs require an inspection to assembly and modifying the oxygen will also post a report summarizing each determine the manufacturer and mask assembly by replacing the in-line substantive verbal contact we receive manufacture date of certain oxygen flow indicator with an improved in-line about this proposed AD. mask assemblies and corrective action if flow indicator. necessary. We issued those ADs to FAA’s Determination Discussion prevent the in-line flow indicators of the We received a report that several oxygen mask assembly from fracturing We are proposing this AD because we oxygen mask assemblies with broken in- and separating, which could inhibit evaluated all the relevant information line flow indicators were found oxygen flow to the masks. This and determined the unsafe condition following a mask deployment. That condition could consequently result in described previously is likely to exist or report prompted us to issue the occupants developing hypoxia develop in other products of the same following ADs: following a depressurization event. type design. • AD 2007–26–06, amendment 39– Proposed AD Requirements 15308 (72 FR 71210, December 17, Actions Since Existing ADs Were Issued 2007), for certain Boeing Model 747– Since we issued the ADs listed in the This proposed AD would require 200B, 747–300, and 747–400 series previous section, we determined that accomplishing the actions specified in airplanes identified in Boeing Service the oxygen mask assemblies on the the service information described Bulletin 747–35–2119, dated November affected aircraft have the same flow previously. 30, 2006; indicators as those installed on certain • Differences Between the Proposed AD AD 2008–08–08, amendment 39– oxygen mask assemblies manufactured and the Service Information 15460 (73 FR 19982, April 14, 2008), for under B/E Aerospace Technical certain Boeing Model 757–200, 757– Standard Order Authorization (TSOA) B/E Aerospace Service Bulletin 200CB, 757–200PF, and 757–300 series for Technical Standard Order (TSO) 174080–35–04, Rev 000, dated airplanes identified in Boeing Special TSO–C64 and TSO–C64A. Articles September 6, 2010, lists all affected Attention Service Bulletin 757–35– manufactured under a TSOA may be oxygen mask assembly part numbers; 0028, dated April 9, 2007; installed on various aircraft by a including part numbers listed in B/E • AD 2008–12–05, amendment 39– supplemental type certificate or field Aerospace Service Bulletin 174080–35– 15548 (73 FR 32996, June 11, 2008), for approval. Therefore, we have 01, February 6, 2006 (original issue); certain Boeing Model 777–200, 777– determined that aircraft other than those Revision 1, dated May 1, 2006; and 200LR, 777–300, and 777–300ER series identified in the ADs listed in the Revision 2, dated May 28, 2008. The airplanes identified in Boeing Special previous section may also be subject to oxygen mask assemblies affected by AD Attention Service Bulletin 777–35– the identified unsafe condition. 2007–26–06, AD 2008–08–08, AD 2008– 0019, dated March 9, 2006; This condition, if not corrected, could 12–05, AD 2008–13–21, or AD 2010–14– • AD 2008–13–21, amendment 39– result in the in-line flow indicators of 06 are not affected by this proposed AD. 15584 (73 FR 37781, July 2, 2008), for the oxygen mask assembly fracturing Costs of Compliance certain Boeing Model 767–200, 767– and separating, which could inhibit 300, and 767–400ER series airplanes oxygen flow to the masks and We estimate that this proposed AD identified in Boeing Special Attention consequently result in occupants affects 400,000 oxygen mask assemblies. Service Bulletin 767–35–0054, dated developing hypoxia following a We estimate the following costs to July 6, 2006; and depressurization event. comply with this proposed AD:

ESTIMATED COSTS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Replace the in-line flow indicator per 0.5 work-hour × $85 per hour = $42.50 ... $6.00 $48.50 $19,400,000 mask.

Authority for This Rulemaking ‘‘General requirements.’’ Under that Regulatory Findings section, Congress charges the FAA with Title 49 of the United States Code We determined that this proposed AD specifies the FAA’s authority to issue promoting safe flight of civil aircraft in air commerce by prescribing regulations would not have federalism implications rules on aviation safety. Subtitle I, under Executive Order 13132. This section 106, describes the authority of for practices, methods, and procedures proposed AD would not have a the FAA Administrator. Subtitle VII: the Administrator finds necessary for substantial direct effect on the States, on Aviation Programs, describes in more safety in air commerce. This regulation the relationship between the national detail the scope of the Agency’s is within the scope of that authority authority. because it addresses an unsafe condition Government and the States, or on the We are issuing this rulemaking under that is likely to exist or develop on distribution of power and the authority described in subtitle VII, products identified in this rulemaking responsibilities among the various part A, subpart III, section 44701: action. levels of government.

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For the reasons discussed above, I Special Attention Service Bulletin 767–35– Aerospace Service Bulletin 174080–35–04, certify this proposed regulation: 0054, dated July 6, 2006; and Rev 000, dated September 6, 2010, is (1) Is not a ‘‘significant regulatory (5) AD 2010–14–06, amendment 39–16351 installed, inspect the oxygen mask assembly action’’ under Executive Order 12866, (75 FR 38014, July 1, 2010), for certain The to determine if the in-line flow indicator (2) Is not a ‘‘significant rule’’ under the Boeing Company Model 737–200, 737–300, must be replaced following paragraph II.A. of 737–400, and 737–500 series airplanes B/E Aerospace Service Bulletin 174080–35– DOT Regulatory Policies and Procedures identified in Boeing Special Attention (44 FR 11034, February 26, 1979), 04, Rev 000, dated September 6, 2010. If you Service Bulletin 737–35–1099, Revision 1, can positively determine that the in-line flow (3) Will not affect intrastate aviation dated April 23, 2009. in Alaska, and indicator does not require replacement, no (4) Will not have a significant Applicability further action is required by this paragraph. economic impact, positive or negative, (c) This AD applies to B/E Aerospace, Modification/Replacement Continuous Flow Passenger Oxygen Mask on a substantial number of small entities (h) Before further flight after the inspection Assembly; Part Numbers 174006–(), 174080– under the criteria of the Regulatory in paragraph (g)(2) of this AD where you (), 174085–(), 174095–(), 174097–(), and Flexibility Act. determined the in-line flow indicator must be 174098–() as listed in B/E Aerospace Service List of Subjects in 14 CFR Part 39 Bulletin 174080–35–04, Rev 000, dated replaced, modify the oxygen mask assembly September 6, 2010, that are installed on any by replacing the in-line flow indicator Air transportation, Aircraft, Aviation aircraft except for those Boeing airplanes following B/E Aerospace Service Bulletin safety, Incorporation by reference, specified in the ADs referenced in paragraphs 174080–35–04, Rev 000, dated September 6, Safety. (b)(1), (b)(2), (b)(3), (b)(4), and (b)(5) of this 2010. As an alternative to modifying the oxygen mask assembly, you may replace the The Proposed Amendment AD. Note: The service bulletin lists the part oxygen mask assembly with an airworthy Accordingly, under the authority numbers with a suffix of ‘‘XX.’’ The TSO oxygen mask assembly FAA-approved for delegated to me by the Administrator, Index lists the part numbers with the suffix installation on the aircraft. the FAA proposes to amend 14 CFR part of ‘‘().’’ For the purposes of this AD, we have Parts Installation 39 as follows: used ‘‘().’’ (i) As of the effective date of this AD, no PART 39—AIRWORTHINESS Subject person may install a B/E Aerospace oxygen mask assembly having a part number listed DIRECTIVES (d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of in B/E Aerospace Service Bulletin 174080– 1. The authority citation for part 39 America Code 35: Oxygen. 35–04, Rev 000, dated September 6, 2010, continues to read as follows: with a manufacturing date on or after January Unsafe Condition 1, 2002, and before March 1, 2006, on any Authority: 49 U.S.C. 106(g), 40113, 44701. (e) This AD was prompted by a report that aircraft, unless it has been modified in § 39.13 [Amended] several oxygen mask assemblies with broken accordance with the requirements of 2. The FAA amends § 39.13 by adding in-line flow indicators were found following paragraph (h) of this AD. a mask deployment. We are issuing this AD the following new airworthiness Alternative Methods of Compliance to prevent the in-line flow indicators of the (AMOCs) directive (AD): oxygen mask assembly from fracturing and B/E Aerospace: Docket No. FAA–2011–0139; separating, which could inhibit oxygen flow (j)(1) The Manager, Wichita Aircraft Directorate Identifier 2010–CE–057–AD. to the masks. This condition could Certification Office (ACO), FAA, has the consequently result in occupants developing authority to approve AMOCs for this AD, if Comments Due Date hypoxia following a depressurization event. requested using the procedures found in 14 (a) We must receive comments by April 11, CFR 39.19. In accordance with 14 CFR 39.19, Compliance 2011. send your request to your principal inspector (f) Comply with this AD within the Affected ADs or local Flight Standards District Office, as compliance times specified, unless already appropriate. If sending information directly (b) None. This AD does not revise or done. to the manager of the ACO, send it to the supersede any existing ADs. The following Records Check/Inspection attention of the person identified in the ADs address the unsafe condition described Related Information section of this AD. in paragraph (e) of this AD for certain (g) Within 36 months after the effective (2) Before using any approved AMOC, installations on certain Boeing airplanes: date of this AD or within 6,500 hours time- notify your Principal Maintenance Inspector (1) AD 2007–26–06, amendment 39–15308 in-service after the effective date of this AD, or Principal Avionics Inspector, as (72 FR 71210, December 17, 2007), for certain whichever occurs first, do the following: appropriate, or lacking a principal inspector, Boeing Model 747–200B, 747–300, and 747– (1) Do a records check to determine if any 400 series airplanes identified in Boeing oxygen mask assembly part number listed in your local Flight Standards District Office. Service Bulletin 747–35–2119, dated B/E Aerospace Service Bulletin 174080–35– Related Information November 30, 2006; 04, Rev 000, dated September 6, 2010, is (k) For more information about this AD, (2) AD 2008–08–08, amendment 39–15460 installed. If you cannot positively determine (73 FR 19982, April 14, 2008), for certain the manufacturer and part number of any contact David Fairback, Aerospace Engineer, Boeing Model 757–200, 757–200CB, 757– oxygen mask assembly installed, do a general Wichita ACO, FAA, 1801 Airport Road, 200PF, and 757–300 series airplanes visual inspection to determine if any oxygen Room 100, Wichita, Kansas 67209; telephone: identified in Boeing Special Attention mask assembly part number listed in B/E (316) 946–4154; fax: (316) 946–4107; e-mail: Service Bulletin 757–35–0028, dated April 9, Aerospace Service Bulletin 174080–35–04, [email protected]. 2007; Rev 000, dated September 6, 2010, is (l) For service information identified in (3) AD 2008–12–05, amendment 39–15548 installed. If you can positively determine that this AD, contact B/E Aerospace, 10800 (73 FR 32996, June 11, 2008), for certain no oxygen mask assembly part number listed Pflumm Road, Lenexa, Kansas 66215; Boeing Model 777–200, 777–200LR, 777–300, in B/E Aerospace Service Bulletin 174080– telephone: 913–888–9800; fax: 913–469– and 777–300ER series airplanes identified in 35–04, Rev 000, dated September 6, 2010, is 8419; Internet: http://www.beaerospace.com. Boeing Special Attention Service Bulletin installed, no further action is required by this You may review copies of the referenced 777–35–0019, dated March 9, 2006; paragraph. service information at the FAA, Small (4) AD 2008–13–21, amendment 39–15584 (2) If, as a result of the records check/ Airplane Directorate, 901 Locust, Kansas (73 FR 37781, July 2, 2008), for certain inspection required in paragraph (g)(1) of this City, Missouri 64106. For information on the Boeing Model 767–200, 767–300, and 767– AD, you determine that an oxygen mask availability of this material at the FAA, call 400ER series airplanes identified in Boeing assembly part number listed in B/E 816–329–4148.

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Issued in Kansas City, Missouri, on Information (CBI) or other information SUPPLEMENTARY INFORMATION: February 15, 2011. whose disclosure is restricted by statute. Earl Lawrence, Do not submit information that you Background Manager, Small Airplane Directorate, Aircraft consider to be CBI or otherwise The statutory and regulatory Certification Service. protected through http:// background is described in detail in the [FR Doc. 2011–4046 Filed 2–22–11; 8:45 am] www.regulations.gov or e-mail. The December 15, 2010, notice of proposed BILLING CODE 4910–13–P http://www.regulations.gov Web site is rulemaking (75 FR 78558). EPA has an ‘‘anonymous access’’ system, which proposed to lower the leak repair trigger means EPA will not know your identity rates for comfort cooling, commercial or contact information unless you ENVIRONMENTAL PROTECTION refrigeration, and industrial process AGENCY provide it in the body of your comment. If you send an e-mail comment directly refrigeration and air-conditioning 40 CFR Part 82 to EPA without going through http:// equipment with refrigerant charges greater than 50 pounds of ozone- [EPA–HQ–OAR–2003–0167; FRL–9270–2] www.regulations.gov your e-mail address will be automatically captured depleting substances. This action Protection of Stratospheric Ozone: and included as part of the comment proposes to streamline existing required Amendments to the Section 608 Leak that is placed in the public docket and practices and associated reporting and Repair Requirements made available on the Internet. If you recordkeeping requirements by submit an electronic comment, EPA establishing similar leak repair AGENCY: Environmental Protection recommends that you include your requirements for owners or operators of Agency (EPA). name and other contact information in comfort cooling, commercial ACTION: Proposed rule; reopening of the body of your comment and with any refrigeration, and industrial process public comment period. disk or CD–ROM you submit. If EPA refrigeration appliances. This action cannot read your comment due to also proposes to reduce the use and SUMMARY: EPA issued a proposed rule in technical difficulties and cannot contact emissions of class I and class II the December 15, 2010, Federal Register you for clarification, EPA may not be controlled substances (such as but not proposing changes to the leak repair able to consider your comment. limited to CFC–11, CFC–12, HCFC–123, regulations promulgated under Section Electronic files should avoid the use of and HCFC–22) by requiring verification 608 of the Clean Air Act Amendments special characters and any form of and documentation of all repairs, of 1990. In response to stakeholder encryption, and be free of any defects or requests, this action reopens the public retrofit or retirement of appliances that viruses. cannot be sufficiently repaired; comment period through March 25, Docket: All documents in the docket 2011. replacement of appliance components are listed in the http:// that have a history of failures; and www.regulations.gov index. Although DATES: Comments, identified by docket recordkeeping of the determination of listed in the index, some information is ID number EPA–HQ–OAR–2003–0167, the full charge and the fate of recovered must be received on or before March 25, not publicly available: e.g., CBI or other refrigerant. 2011. information whose disclosure is ADDRESSES: Submit your comments to restricted by statute. Certain other This Action docket EPA–HQ–OAR–2003–0167 by material, such as copyrighted material, one of the following methods: will be publicly available only in hard EPA has received a request to provide Federal eRulemaking Portal: http:// copy. additional time for public comment on www.regulations.gov. Follow the on-line Publicly available docket materials the proposed rule. We believe that the instructions for submitting comments. are available either electronically in request is reasonable and that a further E-mail: [email protected]. http://www.regulations.gov or in hard 30 days for additional public comment Mail: Environmental Protection copy at the Air Docket, EPA/DC, EPA is appropriate, since it will provide Agency. EPA Docket Center (EPA/DC), West, Room 3334, 1301 Constitution affected entities with necessary time to Mailcode 6102T, Attention Docket ID Ave., NW., Washington, DC. This complete analysis and comment on the No. EPA–HQ–OAR–2003–0167, 1200 Docket Facility is open from 8:30 a.m. proposal. This action therefore reopens Pennsylvania Avenue, NW., to 4:30 p.m., Monday through Friday, the comment period for 30 days. We Washington, DC 20460. excluding legal holidays. The telephone intend to issue a final rule as Hand Delivery: Public Reading Room, number for the Public Reading Room is expeditiously as possible following Room 3334, EPA West Building, 1301 (202) 566–1744, and the telephone consideration of the comments and Constitution Avenue, NW., Washington, number for the Air Docket is (202) 566– information we receive. DC. Such deliveries are only accepted 1742. Dated: February 16, 2011. during the Docket’s normal hours of FOR FURTHER INFORMATION CONTACT: Ross operation, and special arrangements Brennan, Stratospheric Protection Gina McCarthy, should be made for deliveries of boxed Division, Office of Atmospheric Assistant Administrator, Office of Air and information. Programs; Environmental Protection Radiation. Instructions: Direct your comments to Agency, Mail Code 6205J, 1200 [FR Doc. 2011–3992 Filed 2–22–11; 8:45 am] Docket ID No. EPA–HQ–OAR–2003– Pennsylvania Ave., NW., Washington, BILLING CODE 6560–50–P 0167. EPA’s policy is that all comments DC 20460; telephone number (202) 343– received will be included in the public 9226; fax number (202) 343–2338; e- docket without change and may be mail address [email protected]. made available online at http:// More information about EPA’s leak www.regulations.gov, including any repair requirements under Section 608, personal information provided, unless including a copy of the proposed rule, the comment includes information is available at http://epa.gov/ozone/ claimed to be Confidential Business title6/608/leak.html.

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ENVIRONMENTAL PROTECTION made available online at http:// Avenue, NW., Washington, DC 20460; AGENCY www.regulations.gov, including any telephone number: 202–564–6581; fax personal information provided, unless number: 202–564–7322; e-mail address: 40 CFR Chapters I through VII the comment includes information ImprovingRegulations.SuggestionBox@ [FRL–9270–8; EPA–HQ–OA–2011–0154, claimed to be Confidential Business epa.gov. If you have questions –0155, –0156, –0157, –0158, –0159, –0160, Information (CBI) or other information concerning the public meetings, contact –0161, –0162, –0163, –0164, –0165, –0166, whose disclosure is restricted by statute. Lucinda Power, Office of Regulatory –0167, –0168] Do not submit information that you Policy and Management (1806A), consider to be CBI or otherwise Environmental Protection Agency, 1200 Improving EPA Regulations protected through http:// Pennsylvania Avenue, NW., AGENCY: Environmental Protection www.regulations.gov. The http:// Washington, DC 20460; telephone Agency (EPA). www.regulations.gov website is an number: 202–566–0356; fax number: ‘‘anonymous access’’ system, which 202–564–0965; e-mail address: ACTION: Request for comment; notice of means EPA will not know your identity ImprovingRegulations.SuggestionBox@ public meeting. or contact information unless you epa.gov. SUMMARY: On January 18, 2011, provide it in the body of your comment. SUPPLEMENTARY INFORMATION: President Obama issued Executive If you send an e-mail comment directly Order 13563, ‘‘Improving Regulation and to EPA without going through http:// I. General Information Regulatory Review,’’ and called on all www.regulations.gov your e-mail EPA’s mission is to protect human Federal agencies to conduct a address will be automatically captured health and the environment. Among the ‘‘retrospective analysis of rules that may and included as part of the comment Agency’s goals are taking action on be outmoded, ineffective, insufficient, that is placed in the public docket and climate change and improving air or excessively burdensome and to made available on the Internet. If you quality; protecting America’s waters; modify, streamline, expand, or repeal submit an electronic comment, EPA cleaning up communities and advancing them in accordance with what has been recommends that you include your sustainable development; ensuring the learned.’’ EPA seeks public input on the name and other contact information in safety of chemicals and preventing design of a plan to use for periodic the body of your comment and with any pollution; and enforcing environmental retrospective review of its regulations. disk or CD–ROM you submit. If EPA laws. As part of these efforts, EPA has DATES: Comments must be received on cannot read your comment due to developed a number of regulations that or before March 20, 2011. A public technical difficulties and cannot contact protect Americans from significant risks meeting will be held on March 14, 2011 you for clarification, EPA may not be to human health and the environment in Arlington, VA. able to consider your comment. where they live, learn and work. Electronic files should avoid the use of ADDRESSES: You may submit your special characters, any form of A. Submitting Comments comments, identified by Docket ID No. encryption, and be free of any defects or EPA–HQ–OA–2011–0154, –0155, At this time, EPA seeks help in viruses. For additional instructions on –0156, –0157, –0158, –0159, –0160, designing the plan it will use for submitting comments, go to Section II of –0161, –0162, –0163, –0164, –0165, periodic review of regulations. Section the SUPPLEMENTARY INFORMATION section –0166, –0167 or –0168 by any one of the II of this notice provides several specific of this document. following methods: comment categories to focus the Docket: All documents in the docket • http://www.regulations.gov: Follow Agency’s review based upon specific are listed in the http://www.regulations. the on-line instructions for submitting regulatory impacts or program areas. In gov index. Although listed in the index, comments. the following section you will find a • E-mail: ImprovingRegulations. some information is not publicly non-exhaustive list of issues or impacts [email protected] available, e.g., CBI or other information to help you formulate your ideas, • Fax: 202–566–9744 whose disclosure is restricted by statute. though it is not intended to restrict the • Mail: Send a copy of your Certain other material, such as issues that you may wish to address. comments and any enclosures to: copyrighted material, will be publicly Please be as specific as possible when Improving Regulations Docket, available only in hard copy. Publicly submitting your comments. In offering Environmental Protection Agency, EPA available docket materials are available your input, EPA requests that you Docket Center, Mailcode: 2822T, 1200 either electronically in http://www. include an explanation as to why you Pennsylvania Ave., NW, Washington, regulations.gov or in hard copy at the believe a regulation should be modified, DC 20460. Improving Regulations Docket, EPA/DC, streamlined, expanded or repealed; any • Hand Delivery: Improving EPA West, Room 3334, 1301 data or other information that supports Regulations Docket, EPA/DC, EPA West, Constitution Ave., NW., Washington, your explanation; and suggestions on Room 3334, 1301 Constitution Ave., DC. The Public Reading Room is open how the Agency can better achieve the NW., Washington, DC. Such deliveries from 8:30 a.m. to 4:30 p.m., Monday regulatory program’s objective. Please are only accepted during the Docket’s through Friday, excluding legal provide citation if you reference a normal hours of operation, and special holidays. The telephone number for the specific regulation. arrangements should be made for Public Reading Room is (202) 566–1744, While it is EPA’s aim is to define a deliveries of boxed information. and the telephone number for the method and schedule for periodically Instructions: Direct your comments to Improving Regulations Docket is (202) identifying certain significant rules that Docket ID No. EPA–HQ–OA–2011– 566–1752. warrant repeal or modification because 0154, –0155, –0156, –0157, –0158, FOR FURTHER INFORMATION CONTACT: For they are no longer justified or necessary, –0159, –0160, –0161, –0162, –0163, further information on this document, this review may also reveal that an –0164, –0165, –0166, –0167, –0168. please contact Stuart Miles-McLean, existing rule is needed, but has not EPA’s policy is that all comments Office of Regulatory Policy and operated as well as expected, and that received will be included in the public Management (1803A), Environmental a stronger, expanded, or somewhat docket without change and may be Protection Agency, 1200 Pennsylvania different approach is justified.

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EPA is accepting your comments from sections present a series of questions alternatives be designed to ensure that now through 03/20/2011. Although the under these categories as a guide for environmental objectives are still met? Agency won’t be able to respond to making recommendations on the design 2. Environmental Justice/Children’s every individual comment, your input is of EPA’s periodic retrospective review Health/Elderly valued and your ideas merit careful plan. If you wish to submit comments, consideration. By late May or early June, please address them to the appropriate Submit a comment related to you will have the chance to read our docket labeled in each section or by environmental justice, children’s health, retrospective review plan at http:// mail as described in the ADDRESSES or the elderly to the ‘‘Improving www.epa.gov/improvingregulations, as section above. Regulations: EJ, Children & Elderly’’ well as an initial list of regulations that The first set of questions relating to docket (EPA–HQ–OA–2011–0168). Use we plan to review first. the design plan are not intended to be the following questions to guide your As you comment, EPA requests that restrictive but are meant to assist you in comments: you keep these key considerations in formulating your comments. • Which regulations have exacerbated mind: • How should EPA identify candidate existing impacts or created new impacts • EPA must uphold its mission to regulations for periodic retrospective on vulnerable populations such as low- protect human health and the review? income or minority populations, environment. • What criteria should EPA use to children or the elderly? Which ones and • EPA’s plan will be tailored to reflect prioritize regulations for review? how? What suggestions do you have for its resources, rulemaking history, and • How should EPA’s review plan be how the Agency could change the volume. integrated with its existing requirements regulations? What data support this? • A number of laws already direct the to conduct retrospective reviews? • Which regulations have failed to Agency to regularly review certain • How often should EPA solicit input protect vulnerable populations regulations. Your input is requested on from the public? (minority or low-income, children or developing a plan that is integrated with • What should be the timing of any elderly) and why? those existing requirements. given regulatory review (e.g., should a • Which regulations could be • See http://www.epa.gov/ regulation be in effect for a certain streamlined, modified, tightened, or improvingregulations for additional amount of time before it is reviewed)? expanded to mitigate or prevent impacts information and updates. to vulnerable populations (minority or A. Issue or Impact Areas for low-income, children or elderly)? What B. Public Meetings Consideration suggestions do you have for changing EPA will hold a public meeting at To more specifically focus your the regulations? What data support this? Hilton Arlington, 950 N Stafford Street, response, the following questions listed Arlington, VA on March 14, 2011. by issue or impact area may assist but 3. Science/Obsolete/Technology Registration information and updates are not meant to limit you in providing Outdated are available at http://www.epa.gov/ EPA input on its retrospective review Submit a comment related to the improvingregulations/meeting.html. In plan. science in regulations that you believe addition, EPA plans to host a variety of is outdated or which relies on outdated meetings in regional offices in March 1. Integration and Innovation technology. Use the ‘‘Improving 2011. The specific location names and Submit a comment on integrating Regulations: Science/Obsolete/ addresses for these regional meetings regulations or achieving innovation to Technology Outdated’’ docket (EPA– will be posted as they become available the ‘‘Improving Regulations: Integration HQ–OA–2011–0162) and the following at http:/www.epa.gov// and Innovation’’ docket (EPA–HQ–OA– questions to guide your comments: improvingregulations/meeting.html. 2011–0161). Use the following questions • Which regulations could be to guide your comments: modified because the underlying II. Design of Plan for Periodic • Which regulations could achieve scientific data has changed since the Retrospective Review the intended environmental results regulation was issued, and the change EPA’s plan will create a defined using less costly methods, technology, supports revision to the original method and schedule for periodically or innovative techniques? How could regulation? What data support this? identifying certain significant the regulations be changed? What data What suggestions do you have for regulations that are obsolete, support this? changing the regulations? unnecessary, unjustified, excessively • Which regulations could be • Which regulations have achieved burdensome, or counterproductive. improved by harmonizing requirements their original objective and have now Also, it will consider how best to across programs or agencies to better become unnecessary or obsolete? What strengthen, complement or modernize meet the regulatory objectives? What data support this? What suggestions do rules where necessary or appropriate— suggestions do you have for how the you have for how the Agency could including, if relevant, undertaking new Agency can better harmonize these modify, streamline, expand, or repeal rulemaking. To help EPA design the requirements? the regulation? plan, you are invited to provide input • Which regulations have • Have circumstances surrounding on specific considerations related to requirements that are overlapping and any regulations changed significantly how the agency should conduct these could be streamlined or eliminated? such that the regulation’s requirements periodic retrospective reviews of What suggestions do you have for how should be reconsidered? Which existing regulations. the Agency could modify the regulations? What data support this? To assist you in focusing your regulations? Be specific about how What suggestions can you provide the comments or recommendations, EPA burden can be reduced from gained Agency about how these regulations has provided three categories relating to efficiencies related to streamlining the could be changed? issue/impact, program area, or a requirements. • Which regulations or reporting multipurpose general area. These are • What opportunities exist for the requirements have become outdated? not intended to restrict the issues that Agency to explore alternatives to How can they be modernized to you may wish to address. The following existing regulations? How can these accomplish their regulatory objectives

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better? What data support this? What OA–2011–0158). Use the following years? What changes to the regulation suggestions do you have for how the questions to guide your comments: would promote economic growth or job Agency could change the regulations? • Which regulations have high costs creation without compromising • Which regulations have new and low benefits? What data support environmental protection? What data technologies that can be leveraged to this? support this? modify, streamline, expand or repeal • Which regulations could better • How can regulations spur new existing requirements? What data maximize net benefits (including markets, technologies and new jobs? support this? What suggestions do you potential economic, environmental, What suggestions do you have to have for how the Agency could change public health and safety, and other support this idea? these regulations? advantages; distributive impacts; and • Which regulations have impeded equity)? What data support this? What economic growth in an affected industry 4. State, Local and Tribal Governments quantitative and qualitative benefits and sector? What information is available to Submit a comment related to state/ costs justify your suggestion support this? How could the regulations local/tribal government issues in the (recognizing that some benefits and be modified to improve both economic ‘‘Improving Regulations: State, Local costs are difficult to quantify)? growth and environmental protection? and Tribal governments’’ docket (EPA– What data support this? HQ–OA–2011–0163). Use the following 7. Small Business • Where can EPA examine market- questions to guide your comments: Submit a comment related to small based incentives as an option to • Which regulations impose burden business impacts in the ‘‘Improving regulation? What program would you on state, local or tribal governments? Regulations: Small Business’’ docket design that utilizes market-based How could these regulations be changed (EPA–HQ–OA–2011–0164). Use the incentives and ensures environmental to reduce the burden without following questions to guide your objectives are still met? compromising environmental comments: • How can a regulation be improved protection? • Which regulations have large so as to create, expand or transform a • What opportunities are there within impacts on small businesses? How market? existing regulations to better partner could these regulations be changed to • Which regulations could be with state, local and/or tribal reduce the impact while maintaining modified so as to invite public/private governments? If so, do you have environmental protection? Are there partnerships, and how? suggestions for how to better utilize flexible approaches that might help B. Program Area those opportunities? reduce these impacts? Which of these regulations have high costs and low Use one of the dockets listed below to 5. Least Burdensome/Flexible benefits? What data support this? provide comments related to a specific Approaches • program area. Are there any regulations where • Provide comment on a regulation that flexible approaches for small businesses ‘‘Improving Regulations: Air’’ is burdensome or could be more flexible have proven successful and could serve docket—EPA–HQ–OA–2011–0155 • ‘‘ ’’ in the ‘‘Improving Regulations: Least as a model? Where else and how could Improving Regulations: Pesticides ’’ docket—EPA–HQ–OA–2011–0157 Burden/Flexible Approaches docket these approaches be utilized? • (EPA–HQ–OA–2011–0165). Use the ‘‘Improving Regulations: Toxic following questions to guide your 8. Compliance Substances’’ docket—EPA–HQ–OA– comments: Submit a comment related to 2011–0159 • ‘‘ ’’ • Which regulations have proven to compliance in the ‘‘Improving Improving Regulations: Waste be excessively burdensome? What data Regulations: Compliance’’ docket (EPA– docket—EPA–HQ–OA–2011–0160 • ‘‘Improving Regulations: Water’’ support this? How many facilities are HQ–OA–2011–0166). Use the following docket—EPA–HQ–OA–2011–0154 affected? What suggestions do you have questions to guide your comments: for reducing the burden and • Which regulations have C. General Category maintaining environmental protection? complicated or time consuming • Use the Improving Regulations: Which regulations impose requirements? To what extent are General docket (EPA–HQ–OA–2011– paperwork activities (reporting, alternative compliance tools available? 0156) to submit an idea for how best to recordkeeping, or 3rd party Could the regulations be modified to promote retrospective analysis of rules. notifications) that would benefit from improve compliance? What data support This docket may also be used for any online reporting or electronic this? • comment that: recordkeeping? Tell us whether Which regulations or regulated • Pertains to more than one issue/ regulated entities have flexibility in sectors have particularly high impact and/or program area. providing the required 3rd party compliance? How could the factors or • Doesn’t relate to any of the other disclosure or notification. What data approaches that lead to high compliance docket categories listed in this section. support this? What suggestions do you be utilized in other regulations and EPA welcomes comment and have for how the Agency could change sectors? What data is available to feedback from all parties on the issues the regulation? support this? listed herein. The Agency is collecting • Which regulations could be made 9. Economic Conditions/Market this information for its planning more flexible within the existing legal purposes and is not bound to further framework? What data support this? Submit a comment about economic action or response. All submissions will What suggestions do you have for how conditions and/or markets in the be made publically available on http:// the Agency could change the regulations ‘‘Improving Regulations: Economic www.regulations.gov. to be more flexible? Conditions/Market’’ docket (EPA–HQ– OA–2011–0167). Use the following Dated: February 18, 2011. 6. Benefits and Costs questions to guide your comments: Michael Goo, Submit a comment related to benefits • Which regulations have impacted Associate Administrator, Office of Policy. and costs in the ‘‘Improving Regulations: an industry sector(s) that was hard hit [FR Doc. 2011–4152 Filed 2–22–11; 8:45 am] Benefits and Costs’’ docket (EPA–HQ– by high unemployment in the past three BILLING CODE 6560–50–P

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FEDERAL COMMUNICATIONS (TTY). This document does not contain DEPARTMENT OF THE INTERIOR COMMISSION proposed information collection requirements subject to the Paperwork Fish and Wildlife Service 47 CFR Part 73 Reduction Act of 1995, Public Law 104– 50 CFR Part 17 [DA 11–224; MB Docket No. 11–20; RM– 13. In addition, therefore, it does not 11619] contain any proposed information [Docket No. FWS–R8–ES–2010–0016; MO collection burden ‘‘for small business 92210–0–0008–B2] Television Broadcasting Services; concerns with fewer than 25 Kalispell, MT employees,’’ pursuant to the Small Endangered and Threatened Wildlife and Plants; 12-Month Finding on a AGENCY: Federal Communications Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. Petition To List Thorne’s Hairstreak Commission. Butterfly as Endangered ACTION: Proposed rule. 3506(c)(4). Provisions of the Regulatory AGENCY: Fish and Wildlife Service, SUMMARY: The Commission has before it Flexibility Act of 1980 do not apply to Interior. a petition for rulemaking filed by this proceeding. Members of the public ACTION: Notice of 12-month petition Montana State University, requesting should note that from the time a Notice finding. that we add channel *46, Kalispell, of Proposed Rule Making is issued until Montana, which is already allotted to SUMMARY: We, the U.S. Fish and the matter is no longer subject to the Pre-Transition DTV table of Wildlife Service, announce a 12-month Commission consideration or court Allotments, to the Post-Transition Table finding on a petition to list Thorne’s of DTV Allotments. review, all ex parte contacts (other than hairstreak butterfly (Callophrys ex parte presentations exempt under 47 DATES: Comments must be filed on or [Mitoura] gryneus thornei) as CFR 1.1204(a)) are prohibited in before March 25, 2011, and reply endangered under the Endangered Commission proceedings, such as this comments on or before April 11, 2011. Species Act of 1973, as amended (Act). one, which involve channel allotments. ADDRESSES: Federal Communications After review of all available scientific See 47 CFR 1.1208 for rules governing and commercial information, we find Commission, Office of the Secretary, restricted proceedings. 445 12th Street, SW., Washington, DC that listing Thorne’s hairstreak butterfly 20554. In addition to filing comments For information regarding proper is not warranted at this time. However, with the FCC, interested parties should filing procedures for comments, see 47 we ask the public to submit to us any serve counsel for petitioner as follows: CFR 1.415 and 1.420. new information that becomes available concerning the threats to Thorne’s Margaret L. Miller, Esq., Dow Lohnes List of Subjects in 47 CFR Part 73 PLLC, 1200 New Hampshire Avenue, hairstreak butterfly or its habitat at any time. NW., Suite 800, Washington, DC 20036– Television, Television broadcasting. 6802. DATES: The finding announced in this For the reasons discussed in the FOR FURTHER INFORMATION CONTACT: document was made on February 23, preamble, the Federal Communications Adrienne Y. Denysyk, 2011. Commission proposes to amend 47 CFR [email protected], Media ADDRESSES: This finding is available on Bureau, (202) 418–1600. part 73 as follows: the Internet at http:// www.regulations.gov at Docket Number SUPPLEMENTARY INFORMATION: This is a PART 73—RADIO BROADCAST FWS–R8–ES–2010–0016. Supporting synopsis of the Commission’s Notice of SERVICES Proposed Rule Making, MB Docket No. documentation we used in preparing this finding is available for public 11–20, adopted February 7, 2011, and 1. The authority citation for part 73 inspection, by appointment, during released February 9, 2011. The full text continues to read as follows: of this document is available for public normal business hours at the Carlsbad inspection and copying during normal Authority: 47 U.S.C. 154, 303, 334, 336, Fish and Wildlife Office, U.S. Fish and business hours in the FCC’s Reference and 339. Wildlife Service, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Information Center at Portals II, CY– § 73.622 [Amended] A257, 445 12th Street, SW., Please submit any new information, Washington, DC 20554. This document 2. Section 73.622(i), the Post- materials, comments, or questions will also be available via ECFS (http:// Transition Table of DTV Allotments concerning this finding to the above www.fcc.gov/cgb/ecfs/). (Documents under Montana, is amended by adding street address. will be available electronically in ASCII, channel *46 at Kalispell. FOR FURTHER INFORMATION CONTACT: Jim Word 97, and/or Adobe Acrobat.) This Federal Communications Commission. Bartel, Field Supervisor, Carlsbad Fish document may be purchased from the and Wildlife Office, U.S. Fish and Commission’s duplicating contractor, Barbara A. Kreisman, Wildlife Service, 6010 Hidden Valley Best Copy and Printing, Inc., 445 12th Chief, Video Division, Media Bureau. Road, Suite 101, Carlsbad, CA 92011; by Street, SW., Room CY–B402, [FR Doc. 2011–4008 Filed 2–22–11; 8:45 am] telephone at 760–431–9440; or by Washington, DC 20554, telephone 1– BILLING CODE 6712–01–P facsimile to 760–431–9624. Persons who 800–478–3160 or via e-mail http:// use a telecommunications device for the www.BCPIWEB.com. To request this deaf (TDD) may call the Federal document in accessible formats Information Relay Service (FIRS) at (computer diskettes, large print, audio 800–877–8339. recording, and Braille), send an e-mail SUPPLEMENTARY INFORMATION: to [email protected] or call the Commission’s Consumer and Background Governmental Affairs Bureau at (202) Section 4(b)(3)(B) of the Endangered 418–0530 (voice), (202) 418–0432 Species Act of 1973, as amended (Act)

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(16 U.S.C. 1531 et seq.) requires that, for August 8, 2006. If the 90-day finding The classification of Thorne’s any petition to revise the Federal Lists determined that listing may be hairstreak butterfly continues to be a of Endangered and Threatened Wildlife warranted, we agreed to submit a 12- focus of investigation. Recent work that and Plants that contains substantial month finding for Thorne’s hairstreak includes mitochondrial DNA and scientific or commercial information butterfly to the Federal Register by allozyme analysis indicates that that listing a species may be warranted, March 4, 2011. On April 5, 2010, we Thorne’s hairstreak is closely related to we make a finding within 12 months of published a 90-day finding that juniper hairstreak (Shiraiwa 2010, p. 1; the date of receipt of the petition. In this determined listing of Thorne’s Pratt 2010, in press), as originally finding, we determine whether the hairstreak butterfly as endangered may suggested by Shields (1984, p. 53). petitioned action is: (a) Not warranted; be warranted (75 FR 17062). This notice Pratt’s (2010, in press, p. 9) work also (b) warranted; or (c) warranted, but constitutes the 12-month finding on the appears to support classifying Mitoura immediate proposal of a regulation petition to determine whether listing the as a genus or subgenus, which would implementing the petitioned action is Thorne’s hairstreak butterfly as classify Thorne’s hairstreak butterfly as precluded by other pending proposals to endangered is warranted. a subspecies of Mitoura loki (the juniper determine whether species are hairstreak). Thorne’s hairstreak butterfly Subspecies Information endangered or threatened, and has always been classified as a separate expeditious progress is being made to It is our intent to discuss only those entity at some level (species or add or remove qualified species from topics directly relevant to the listing of subspecies), and therefore it is a listable the Federal Lists of Endangered and Thorne’s hairstreak butterfly under the entity under the Act. As described Threatened Wildlife and Plants. Section Act in this 12-month finding. For more above, recent work indicates that it is 4(b)(3)(C) of the Act requires that we information on the taxonomy, biology, best classified as a subspecies close to treat a petition for which the requested and ecology of Thorne’s hairstreak the juniper hairstreak. The action is found to be warranted but butterfly, please refer to the 90-day monophyletic group Mitoura may precluded as though resubmitted on the finding published in the Federal warrant recognition as a separate genus date of such finding, that is, requiring a Register on April 5, 2010 (75 FR 17062). in the future. subsequent finding to be made within That document is available on the In this 12-month finding, we follow 12 months. We must publish these 12- Internet at http://www.fws.gov/Carlsbad the most recent recommendation from month findings in the Federal Register. and at http://www.regulations.gov the North American Butterfly (under docket number FWS–R8–ES– Association Names Committee (Cassie et Previous Federal Actions 2010–0016). al. 2001, p. 9) and treat Thorne’s On August 8, 2006, we published 90- Taxonomy and Nomenclature hairstreak butterfly as a subspecies day findings for both the Thorne’s named Callophrys gryneus thornei. hairstreak and the Hermes copper Thorne’s hairstreak butterfly was first butterflies in the Federal Register (71 described as Mitoura thornei based on a Habitat FR 44980 and 71 FR 44966, specimen collected in 1972 near Otay Thorne’s hairstreak butterfly habitat is respectively). The findings concluded Lake by Fred Thorne (Brown 1983, p. characterized by interior cypress that the petitions and information in our 246). Biologists questioned the woodland, also recently known as files did not present substantial classification of Thorne’s hairstreak Callitropsis forbesii Woodland Alliance scientific or commercial information butterfly as a species. Shields (1984, p. (Tecate cypress stands) (Sawyer et al. indicating that listing Thorne’s 53) relegated it to a brown subspecies of 2009, pp. 101–102) dominated by its hairstreak butterfly or Hermes copper the juniper hairstreak (species or host plant, Hesperocyparis forbesii butterfly may be warranted. For a subspecies name loki) as Mitoura loki (Tecate cypress). This habitat is found detailed history of Federal actions thornei. Scott (1986, p. 374) also on Otay Mountain, intermixed with involving Thorne’s hairstreak butterfly classified it as a subspecies, but under chaparral between approximately 800 prior to the 2006 90-day finding, please the name Callophrys gryneus thornei, in feet (ft) (244 meters (m)) and 3,290 ft see the August 8, 2006, Federal Register part because he did not consider any (1003 m) in elevation (i.e., the mountain publication (71 FR 44980). taxa in Mitoura as a genus distinct from peak). Adult Thorne’s hairstreak On March 17, 2009, Center for Callophrys. The classification of butterflies are known to feed on the Biological Diversity (CBD) and David Mitoura thornei was evaluated in 1999 nectar of Eriogonum fasciculatum Hogan filed a complaint for declaratory by the Committee on Scientific Names (California buckwheat), Ceanothus and injunctive relief challenging the of North American Butterflies tomentosus (Ramona lilac), and Lotus Service’s decision not to list Thorne’s (Committee). The Committee reached scoparius (deerweed) in the vicinity of hairstreak butterfly and Hermes copper consensus based on publications and stands of H. forbesii (Faulkner and Klein butterfly as endangered or threatened arguments presented, and accepted 2005, p. 33). A recent study indicates under the Act. In a settlement agreement classification of Thorne’s hairstreak Asclepias fascicularis (narrowleaf dated October 23, 2009 (Case No. 09– butterfly as a subspecies of the species milkweed) is also used as an adult 0533 S.D. Cal.), the Service agreed to Callophrys gryneus (Burns et al. 2000, p. nectar source throughout the submit a new 90-day petition finding for 9). Subsequently, the Committee subspecies’ range (Lucas 2009, pers. Thorne’s hairstreak butterfly to the prepared the second edition of the comm.). It is likely that Thorne’s Federal Register by April 2, 2010. As Checklist of English Names of North hairstreak butterfly, like most part of the settlement agreement, we American Butterflies in which Thorne’s butterflies, uses a variety of plant agreed to evaluate the October 25, 2004, hairstreak butterfly was classified as species as nectar sources, and frequency petition filed by CBD and David Hogan, Callophrys gryneus thornei (Cassie et al. of use is primarily dependent on supporting information submitted with 2001, p. 9). Van Buskirk (2004) availability. the petition, and information available reviewed Thorne’s hairstreak butterfly Thorne’s hairstreak butterfly deposits in the Service’s files, including classification for the Service; this review eggs and feeds exclusively on its larval information that has become available concurred with the Committee’s host plant, Hesperocyparis forbesii, to since the publication of the negative 90- decision to classify Thorne’s hairstreak complete its life cycle (Brown 1983, p. day finding in the Federal Register on butterfly as Callophrys gryneus thornei. 252). Williams and Congedo (2008)

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studied aspects of larval host plant use Distribution and Population Status previously burned areas and the by Thorne’s hairstreak butterfly. They We evaluated available information increase in the known butterfly recorded number of eggs per H. forbesii on the current range, historical range, distribution indicate that Thorne’s tree, placement of eggs within trees, and population status of Thorne’s hairstreak butterfly has either location of feeding damage on trees, and hairstreak butterfly to develop the most successfully recolonized burned areas or larval food choice, comparing mature current understanding of its distribution persisted within mapped fire perimeters (cone-bearing) trees to immature trees and status. on Otay Mountain. (no cones) (Williams and Congedo 2008, Our knowledge of Thorne’s hairstreak A previously unknown Thorne’s hairstreak butterfly observation was also pp. 6–13). No significant difference was butterfly’s range has greatly increased documented in 2010 off of Otay found between use of young or recent over the past 10 years. The known pre- Mountain at a lower elevation in shoots (appressed scale leaves and 2003 fire distribution of Thorne’s approximately 1 ac (0.4 ha) of atypical, stems) from mature and immature trees hairstreak butterfly approximately created habitat, which suggests that encompassed the northeast quadrant of (Williams and Congedo 2008, pp. Thorne’s hairstreak butterfly either has Otay Mountain, including locations just 15–18). Williams and Congedo (2008, p. the ability to recolonize small southwest of the peak and a lower- 14) also noted that Thorne’s hairstreak Hesperocyparis forbesii stands at lower elevation location east of Otay Lakes butterflies occupied stands of trees not elevations or that this observation may (Klein 2010a, p. 2). The 2003 Mine Fire more than 5 years old, and that represent a new occurrence that was not approximately 7 percent of new fire (also called the Otay Fire) perimeter previously documented. Of note, this regrowth trees were producing cones. encompassed all habitats where new location: Williams and Congedo (2008, p. 19) butterflies had been observed; however, (1) Is in the Otay River Valley, at the concluded larvae could develop by post-fire surveys revealed a cluster of mouth of O’Neal Canyon (Busby 2010a, feeding on tissue from immature or locations occupied by Thorne’s pp. 1–2; Cooper 2010a, p. 1) and is mature trees; thus the availability of hairstreak butterflies in the southwest outside the known Thorne’s hairstreak host plants for egg deposition in an quadrant of Otay Mountain outside of butterfly range; occupied area is not likely limiting. the mapped fire perimeter (Klein 2010a, (2) Is over 2.5 mi (4 km) from, and p. 11). The 2007 Harris Fire perimeter These results confirm the hypothesis over 1000 ft (305 m) lower in elevation encompassed the lower north and east drawn from adult presence in new post- than, the nearest occupied site upslope slopes of Otay Mountain, affecting a fire growth that oviposition is not at the base of Otay Mountain (as large portion of cypress forest in the described by Lucas 2010, slide 15; limited by host plant age, as discussed northwest quadrant near Otay Lakes. in the 2006 and 2010 90-day findings Google Earth imagery); Post-2007 fire surveys on Otay (3) Is approximately 500 ft (152 m) (71 FR 44980 and 75 FR 17062, Mountain conducted by Lucas in 2010 lower in elevation than the lowest respectively). Therefore, the best included all areas within the species’ previously recorded observation east of available information indicates Thorne’s range on Otay Mountain except known Otay Lake (site 5 described by Klein hairstreak butterfly larvae can utilize historical locations at the easternmost 2010a, p. 2); and any available life stage of H. forbesii to edge of the species’ range (Lucas 2010), (4) Occurs on land conserved and complete its life cycle. thus we are uncertain about the current managed by the City of Chula Vista, Nectar source abundance is also a key status of the species at this easternmost which is the only known occupied area factor in determining Thorne’s edge of the species range. Only one located entirely outside of the Bureau of hairstreak butterfly habitat suitability. stand of trees (that was not a known Land Management (BLM) Otay Van Reusel et al. (2006, pp. 201, 207) historical location for Thorne’s Mountain Wilderness (Klein 2010b, p. studied a related species of hairstreak hairstreak butterflies) was surveyed in 1). butterfly and, using predictive models, the eastern area; no butterflies were The June 15 (Busby 2010a, pp. 1–2; found that host plant and nectar source observed (Lucas 2010; Klein 2010a, pp. Cooper 2010a, p. 1) and June 23, 2010, were the primary factors predicting 2, 12). Lucas also recorded a new (Anderson 2010, p. 1; Cooper 2010b, pp. green hairstreak butterfly distribution. Thorne’s hairstreak butterfly occurrence 1–2) observations of adult butterflies at Nectar sources are critical to support location in an area within the northwest the Otay River Valley location are also courtship, mating, and oviposition quadrant of Otay Mountain in 2010, the latest ever recorded for Thorne’s behaviors of butterflies such as Thorne’s thus expanding the pre-2007 fire known hairstreak butterfly during a flight hairstreak butterfly (Williams and range (Lucas 2010). The newly season (Klein 2010b, p. 1). This late record is likely the result of unusually Congedo 2008, p. 20). discovered northwestern Otay Mountain observation location is over 1.5 miles cool spring weather in 2010, creating Biology (mi) (2 kilometers (km)) from the nearest prolonged and cooler moist river valley previous Thorne’s hairstreak butterfly microclimate conditions. A June 1996 The 90-day finding (75 FR 17062; observation in the northeast quadrant satellite image does not show April 5, 2010) incorrectly characterized (Lucas 2010; Klein 2010a, pp. 2, 12). Hesperocyparis forbesii stands at this the flight seasons as described in Surveys by Lucas on Otay Mountain location (Google Earth historical Faulkner and Klein (1995). Thorne’s in 2010 revealed the presence of imagery accessed 2010). Although we hairstreak butterfly has two flight Thorne’s hairstreak butterfly throughout do not have documentation of how or periods per year (bivoltine). The first the majority of Hesperocyparis forbesii why the H. forbesii was established at adult emergence and abundance peak that burned in the 2003 fire, the 2007 this location, analysis of historical occurs in late February through March fire, and in areas burned by both fires satellite imagery from 1996 to 2010 and and possibly early April, depending on (unpublished data 2010). observations of individuals familiar winter rainfall. A second adult Additionally, the known distribution with the site lead us to believe the trees abundance peak occurs in late May or of Thorne’s hairstreak butterfly on Otay were planted as seedlings from a early June, with a possible third in Mountain is greater than was known at nursery to replace native vegetation September if there are summer monsoon the time of the 2004 petition. Therefore, removed when a gas utility pipeline was rains (Klein 2010a, p. 1). the persistence of the butterfly in installed in 1996 (Anderson 2010, p. 1;

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Cooper 2010b, pp. 1¥2; Busby 2010b, p. Data from 2007 revealed that H. forbesii approximate the Thorne’s hairstreak 1). Regardless, occupancy of this newly on Otay Mountain encompasses butterfly population distribution. It is discovered site in created habitat approximately 7,556 ac (3,058 ha) not clear if either scale of cypress supports the hypothesis that Thorne’s (CNDDB GIS database 2007). mapping corresponds with Thorne’s hairstreak butterfly is opportunistic and Additionally, the San Diego Association hairstreak butterfly habitat distribution relatively resilient (i.e., able to persist at of Governments (SANDAG) produced a at either a butterfly population a new, lower elevation level in more vegetation map of Southern Interior distribution or sub-population level. As moist microhabitat conditions than Cypress Forest on Otay Mountain equal a result, we are unable to accurately previously known to occur). to 5,693 ac (2,304 ha) (SANDAG GIS estimate the change in distribution of Results from a previous hairstreak database, 1995). The smallest and most Thorne’s hairstreak butterfly habitat on butterfly movement study also support recent H. forbesii distribution area Otay Mountain because of the differing the hypothesis of natural colonization. estimate of 454 ac (183 ha) cited in the mapping techniques and because Specifically, Robbins and Small (1981, 90-day finding (75 FR 17062; April 5, Hesperocyparis forbesii stands are still p. 308) studied movement of hairstreak 2010) reflects stand-scale mapping recovering from the 2003 and 2007 fires. butterflies (Lycaenidae: Eumaeini) in focused on groups of 20 or more trees Finally, Geographic Information Panama and reported: greater than 3.3 ft (1 m) in height, with System (GIS) analysis of historical fire (1) Observations of 128 species (47 smaller stands included when perimeters indicates the majority of percent of the known Panamanian encountered incidentally (Forister and Thorne’s hairstreak butterfly habitat has hairstreak butterfly fauna) blown across Lucas 2009, p. 1). burned only once or twice in the past the landscape by winds with speeds of Comparison of the CNDDB and 100 years (see Factor A discussion 10 to 25 miles per hour (mi/hr) (15 to SANDAG vegetation databases also below). All available data indicate that 40 kilometers per hour (km/hr)); indicates differences in mapping because cypress forest regrows after fire, (2) More than 80 percent of these methodology. The two vegetation-based and Thorne’s hairstreak butterflies species were blown through habitats mapping methods vary in the areas recolonize cypress forest regardless of where they are not normally found; mapped as occupied by Hesperocyparis host plant age, the distribution of (3) Some species normally found in forbesii, with only approximately half habitat has not changed significantly high-elevation habitats were observed 3 the area mapped in 1995 (SANDAG GIS following the recent fires. mi (5 km) from the nearest upland database, before the 2003 fire) While individual Thorne’s hairstreak habitat; and overlapping occupied areas mapped in butterflies are likely lost when fire (4) Seventy percent of the observed 2007 (CNDDB GIS database, after the burns stands of Hesperocyparis forbesii specimens were females (whereas 2003 fire). Field inspection of three H. (as discussed in the 90-day finding (75 typical sex ratios for hairstreak butterfly forbesii stands along the Minewawa FR 17062; April 5, 2010)), more recent populations have more males than truck trail that were within the 2003 fire data (discussed above) support the females), and 74 percent of captured perimeter revealed new growth of hypothesis that Thorne’s hairstreak females (a subset of those observed) had immature cypress throughout (Anderson butterfly populations are relatively been mated. 2010, p. 1). One H. forbesii location did resilient to fire. Discovery of occupied Robbins and Small (1981, pp. 311–12) not correspond with any location habitat in 2007 and 2010 within the concluded hairstreak butterflies are mapped by Lucas (2010 unpublished 2003 and 2007 fire perimeters, and the likely to be dispersed by wind and can data), while the other two corresponded newly colonized created habitat in 2010 successfully colonize suitable with Lucas’s mapped areas and in the Otay River Valley (see above downwind habitats. In southern observed Thorne’s hairstreak butterfly discussion) indicates Thorne’s California, annual Santa Ana winds observations (Lucas 2010, unpublished hairstreak butterflies can move often produce westerly winds of 25 to data). Furthermore, approximately one- relatively considerable distances, 37 mi/hr (40 to 60 km/hr) from fall third of mapped Thorne’s hairstreak readily colonize new stands of H. through spring (Westerling et al. 2004, butterfly observation locations fall forbesii, and increase their numbers to p. 290), and likely disperse insects. We outside all three mapped H. forbesii detectable levels over a period of 5 to 10 believe this type of wind-assisted distributions discussed above. years. The recently recorded Otay River dispersal occurs at Otay Mountain, and Our current analysis of Thorne’s Valley location represents a confirmed is a likely explanation of how Thorne’s hairstreak butterfly habitat distribution Thorne’s hairstreak butterfly range hairstreak butterfly became established indicates most of the habitat is relatively expansion over the past 10 years. in the Otay River Valley stand of protected. Approximately 88 percent of Furthermore, we have no evidence Hesperocyparis forbesii. cypress woodland is within the BLM supporting a permanent range The 90-day finding (75 FR 17062; Otay Mountain Wilderness area, and 11 contraction or curtailment anywhere April 5, 2010) stated the current percent is within the planning area of throughout the subspecies’ known distribution of Hesperocyparis forbesii the San Diego Subarea Plan under the distribution. in the Otay Mountain area encompasses San Diego MSCP (see Factor A 454 ac (183 ha) post-2003 fire (Lucas discussion below). The remaining one Summary of Information Pertaining to 2009, unpublished data), and compared percent is privately owned. Occupied the Five Factors this to historical Otay Mountain records habitat within the City of Chula Vista Section 4 of the Act (16 U.S.C. 1533) that indicate H. forbesii once covered Subarea Plan planning area is and implementing regulations (50 CFR approximately 7,500 ac (3,035 ha) approximately 1 ac (0.4 ha; see above part 424) set forth procedures for adding (California Natural Diversity Database discussion). species to, removing species from, or (CNDDB) GIS database 2003). After To summarize, available vegetation reclassifying species on the Federal further evaluation of all available host mapping of cypress forest can Lists of Endangered and Threatened plant distribution information, we approximate the Thorne’s hairstreak Wildlife and Plants. Under section determined the acreage values cannot be butterfly population distribution, while 4(a)(1) of the Act, a species may be compared as described in the 90-day Lucas’ data map of cypress forest (which determined to be endangered or finding because the values are a result is on a stand (sub-population)-scale) is threatened based on any of the of different mapping methodologies. not yet comprehensive and thus cannot following five factors:

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(A) The present or threatened Factor A. The Present or Threatened severity, or the ecological impact of a destruction, modification, or Destruction, Modification, or fire and recovery of an ecosystem curtailment of its habitat or range; Curtailment of Its Habitat or Range (Keeley and Fotheringham 2003, p. 231), (B) Overutilization for commercial, The following potential threats that can be different from fire intensity, or recreational, scientific, or educational may affect the habitat or range of the energy released per length of fire purposes; Thorne’s hairstreak butterfly, discussed front (Borchart and Odion 1995, p. 92). in this section, include: (1) Wildfire, (2) Additionally, large fires are not always (C) Disease or predation; climate change as it relates to wildfire equivalent to high-intensity fires (D) The inadequacy of existing (climate change is discussed further (Keeley and Fotheringham 2003, p. 231). regulatory mechanisms; or under Factor E below), (3) habitat This is particularly important when (E) Other natural or manmade factors fragmentation, and (4) road and assessing effects of fire on chaparral affecting its continued existence. firebreak construction required for communities. Fire often burns in a national security and fire management mosaic pattern at different intensities, In making this 12-month finding, (U.S. Customs and Border Protection) thereby resulting in differing levels of information pertaining to Thorne’s activities. We also discuss benefits to effects on particular species and hairstreak butterfly in relation to the Thorne’s hairstreak butterfly and its habitats. Therefore, the inclusion of a five factors provided in section 4(a)(1) of habitat in the Habitat Conservation specific mapped fire perimeter is not a the Act is discussed below. In making Plans (HCPs) and Natural Community reliable indicator of the level of our 12-month finding on the petition, Conservation Plans (NCCPs) section mortality or habitat destruction. we considered and evaluated the best below. In the 90-day finding (75 FR According to Keeley and available scientific and commercial 17062; April 5, 2010), we indicated that Fotheringham (2003, pp. 242–243), the information. based on the petition, recreational historical natural fire regimes in In considering whether a species traffic, prescribed burns, and grazing southern California were likely warrants listing under any of the five were potential threats to Thorne’s characterized by many small lightning- factors, we look beyond the species’ hairstreak butterfly. In the development ignited fires in the summer, a few large exposure to a potential threat or of this 12-month finding, we further fires in the fall, and a variable fire aggregation of threats under any of the investigated the possibility that these intensity. However, the fire frequency factors, and evaluate whether the activities were potential threats and (number of fires in a given area, not species responds to those potential found no evidence that recreational necessarily overlapping) has increased threats in a way that causes actual traffic, prescribed burns, or grazing were in North American Mediterranean occurring or affecting the species or its impact to the species. The identification Shrublands in California since about the habitat. Therefore, we have determined of threats that might impact a species 1950s. Southern California has that these factors are not threats to the negatively is not sufficient to compel a demonstrated the greatest increase in subspecies (see discussions below under finding that the species warrants listing. wildfire ignitions, primarily due to an the Road and Firebreak Construction increase in population density The information must include evidence section, the Factor D discussion, and the beginning in the 1960s, and thus indicating that the threats are operative Factor E discussion). and, either singly or in aggregation, accessibility to new areas (Keeley and affect the status of the species. Threats Wildfire and Climate Change Related to Fotheringham 2003, p. 240). are significant if they drive, or Wildfire We analyzed the past 40 years of fire contribute to, the risk of extinction of Fire regimes are based on the patterns at Otay Mountain and found the species, such that the species temporal and spatial patterns of ignition that the spatial and temporal historical warrants listing as endangered or sources, fuel, weather, and topography fire regime described by Keeley and threatened, as those terms are defined in (Pyne et al. 1996, p. 48). It is also Fotheringham (2003) is confirmed at the Act. important to understand that fire this location as illustrated in Table 1.

TABLE 1—SPATIAL AND TEMPORAL HISTORICAL FIRE REGIME AND FIRE IMPACT ON SOUTHERN INTERIOR CYPRESS FOREST FOR OTAY MOUNTAIN, SAN DIEGO COUNTY, CALIFORNIA

Cypress forest Cypress forest Total fire Number of within fire within fire Year perimeter fires perimeter perimeter (acres) (acres) (hectares)

1971 ...... 56 .04 1 18 .97 7 .67 1976 ...... 1,656 .05 1 28 .68 11 .6 1978 ...... 600 .48 1 22 .67 9.17 1979 ...... 7,557 .45 3 1,062 .83 430.11 1980 ...... 3,313 .64 1 36 .97 14 .96 1981 ...... 371 .67 1 60 .5 24 .48 1982 ...... 1,076 .56 4 124 .42 50.35 1983 ...... 666 .87 2 106.91 43 .26 1985 ...... 188 .37 1 19 .14 7.74 1986 ...... 965 .5 1 0 .34 0.13 1987 ...... 54 .71 1 3 .54 1.43 1989 ...... 129 .8 1 0 .06 0.02 1990 ...... 63 .33 1 7 .4 2 .99 1993 ...... 641 .76 1 24 .24 9.81 1994 ...... 2,983 .35 1 103 .09 41.71 1995 ...... 156 .37 2 14 .73 5.96 1996 ...... 18,460 .02 5 4,186 .08 1,694.05

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TABLE 1—SPATIAL AND TEMPORAL HISTORICAL FIRE REGIME AND FIRE IMPACT ON SOUTHERN INTERIOR CYPRESS FOREST FOR OTAY MOUNTAIN, SAN DIEGO COUNTY, CALIFORNIA—Continued

Cypress forest Cypress forest Total fire Number of within fire within fire Year perimeter fires perimeter perimeter (acres) (acres) (hectares)

1999 ...... 118 .48 1 11 .14 4.51 2003 ...... 44,884 .10 1 7,548 .9 3,054 .95 2005 ...... 359 .15 2 37 .94 15.35 2007 ...... 90,738 .46 1 1,279 .76 517.9 2008 ...... 124 .75 2 0.67 0 .27

The concern for wildfire effects to reproduction in the absence of fire is contrast, collection of seed in older Thorne’s hairstreak butterfly is low. H. forbesii stands for distribution in primarily associated with loss of Hesperocyparis forbesii biology, reproductively immature stands poses Hesperocyparis forbesii trees prior to the status, and management needs were much less risk to the species, but also production of seed cones, which can recently discussed at a workshop on has much less dramatic effects on the result in the extirpation of a given stand June 16, 2010 (Burrascano 2010, pp. persistence of the species than fire (see Habitat section above). 1–4). Some attendees indicated that the breaks do, even if successful Hesperocyparis forbesii is a small tree H. forbesii stands on Otay Mountain are (Markovchick-Nicholls 2007, p. 41). generally associated with ‘‘chaparral declining over the long term and that Current BLM policy (BLM 2010a, pp. ecosystems in southern California and increased fire frequency poses a threat 6–7) dictates any future firebreak and northern Baja California, Mexico’’ (de to the tree (Burrascano 2010, road construction projects in Thorne’s Gouvenain and Ansary 2006, p. 447). pp. 1–4); however, this assumes a hairstreak butterfly habitat on Otay Chaparral is considered a crown-fire significant correlation between the Mountain minimize impacts to the ecosystem, meaning ecosystems which increased fire frequency in southern butterfly (see also Factor D discussion ‘‘have endogenous mechanisms for California and a decrease in the burn below), while reducing the threat of fire recovery that include resprouting from return interval within any given to the subspecies and its host plant by basal burrs and long-lived seed banks occupied cypress stand. Regarding the slowing the spread of fire once ignited. that are stimulated to germinate by fire’’ likelihood of extirpation, Zedler (2010b, To address the issue of fire and how (Keane et al. 2008, p. 702). These p. 2) stated that ‘‘it is very unlikely this it relates to Thorne’s hairstreak butterfly ecosystems are also resilient to high- species will be [extirpated] in 100 years, habitat loss, we conducted several GIS- intensity burns (Keeley et al. 2008, p. almost zero chance in 50.’’ Specifically, based analyses of past fire frequencies 1545). Seed cones of western cypress Zedler (2010b, p. 1) believes the and burn patterns on Otay Mountain. As (Hesperocyparis) mature in the second statistical probability of H. forbesii being described in the 90-day finding (71 FR year, generally remain closed at extirpated from Otay Mountain 44980; August 8, 2006), we used GIS maturity, and open after many years or (assuming relative independence of data in our files to overlay in response to fire (Adams et al. 2009, stands) is very low or insignificant. Hesperocyparis forbesii distribution on p. 180). As a result, H. forbesii, like most Zedler (2010b, p. 1) also concluded that the map provided in the petition western cypresses, has serotinous or as the number of fires in any area of illustrating multiple fires that have closed-cones that allow the species to ground per time increases, the average burned through and near Thorne’s withstand fire. area burned in any given fire decreases; hairstreak butterfly locations over the While Zedler (1977, p. 456) indicated hence, to extirpate H. forbesii past century, and determined the that cone production for Hesperocyparis completely would require almost a majority of H. forbesii was within one or forbesii begins around 10 years of age, saturation of ignitions, which is also two fire perimeters during the 93-year Dunn (1986, p. 369) reported production unlikely. This information supports the period from 1910 to 2003. Furthermore, ‘‘begins at about 5–7 years of age, but is unlikely extirpation of H. forbesii in the as discussed above, the areas of overlap sporadic until the trees reach about 30 foreseeable future. between the 2003 and 2007 fire years in age.’’ Dispersal and germination Regarding the likelihood of decline, perimeters were relegated to lower of seeds is predominantly a result of Markovchick-Nicholls (2007, p. v) used elevation areas where host plant density fire, which results in death of the parent available data and stochastic matrix is lowest. This result corresponds with plant (Zedler 1977, p. 456). However, population models to assess the current the most conservative fire regime Zedler (2010a, pp. 1–2) stated that risk of decline of Hesperocyparis scenario in the Markovchick-Nicholls ‘‘H. forbesii does not require fire to forbesii under a range of southern models discussed above (46 years), germinate and establish seedlings, California fire regime scenarios, and to which is the scenario where the although the frequency with which rank management options and research population appeared the most stable germination without fire occurs in priorities. Her model results suggest that (Markovchick-Nicholls 2007, p. 41). The natural stands is low, and the survival H. forbesii will decline under most fire above information further supports the of seedlings that do germinate is regime scenarios over the long term, but unlikely decline or extirpation of probably even lower.’’ Moreover, given that this trend may be difficult to detect H. forbesii in the foreseeable future. that H. forbesii is a long-lived (more in the short term (Markovchick-Nicholls Using the most recent estimate (based than 100 years) tree (Markovchick- 2007, p. 41). Model results indicated on 2010 data) of 7,549 ac (3,055 ha) Nicholls 2007, p. 4), with some that fire breaks could be highly effective (CNDDB GIS Database 2010) of cypress individual trees on Guatay Mountain for H. forbesii conservation, if designed forest on Otay Mountain, we calculated estimated to exceed 150 years in age to minimize removal of H. forbesii the overlap for the three largest fires in (Dunn 1986, p. 369), the need for (Markovchick-Nicholls 2007, p. 41). In the last 15 years (1996, 2003, and 2007).

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In 1996, 55 percent of cypress forest was circulation, researchers have developed vegetation responses) and contains a within a mapped fire perimeter. In 2003, projections for Santa Ana Occurrence relatively unique community dominated 100 percent of the cypress forest was (SAO) using global climate models by the rare endemic cypress (see also within the mapped fire perimeter. In (GCM) (Miller and Schlegel, 2006, p. 1). Factor E discussion). While uncertainty 2007, 17 percent of cypress forest was Results obtained from one GCM do not exists regarding the potential effects of within the mapped fire perimeter. One show an increase in the total number of climate change on wildfire and habitat hundred percent of the cypress forest annual SAOs; however, they did find a loss, and despite the increasing within the 1996 fire perimeter was also temporal shift in SAOs, with a decrease frequency of fires in southern California, within the 2003 fire perimeter, whereas during the months of September and the best available information does not only 17 percent of the area within the October and an increase in December indicate the average burn return interval 2003 perimeter was also within the 2007 (Miller and Schlegel, 2006, p. 3). The per given area of cypress forest is fire perimeter. Over the last 15 years, effects of this shift, coupled with decreasing, and it does indicate ignition only 9 percent of cypress forest was predicted decreased precipitation (see sources on Otay Mountain have been within all three fire perimeters, and one Climate Change section in Factor E reduced compared to historical levels; approximately 97-ac (39-ha) stand near discussion below) to fire regime are therefore, wildfire has not been, and is the peak within the mapped 2003 fire unclear; however, December and not likely to be, a significant threat to perimeter is estimated to have not January are typically the wettest months the Thorne’s hairstreak butterfly or its burned in approximately 40 years on record in Southern California habitat now or in the foreseeable future. (Allison 2011, p. 1). The 2007 Harris (National Oceanic and Atmospheric Habitat Fragmentation Fire perimeter encompassed the lower Administration 2005). This temporal north and east slopes of Otay Mountain, shift of SAOs from a time following the We examined the possibility of overlapping with the 2003 burn driest period of the year (May to habitat fragmentation affecting Thorne’s perimeter primarily around the base of October) to after the fall and winter hairstreak butterfly. The connectivity of the mountain, indicating the pattern rains begin (Scripps Institute of habitat occupied by a butterfly observed by Dunn (1984, p. 90) has not Oceanography 2010) would likely population is not defined by host plant changed significantly over the past 27 reduce the potential for and impact of distribution at the scale of host plant years (1983–2010). In 1986, Dunn (p. wind and human-caused ignitions in stands or patches, but rather by adult 374) concluded most of the cypress on southern California. butterfly movement that results in Otay Mountain were reaching full The output from climate change interbreeding (see Service 2003a, pp. 22, maturity and a fire would result in little models predicts a 50-percent 162–165). Any loss of resource damage to the population, because it contraction in mixed evergreen contiguity on the ground that does not would in fact result in maximum seed woodland and shrubland vegetation affect butterfly movement, such as dispersal and recruitment. (general vegetation types that may burned vegetation or road construction Despite multiple fires over the last include Hesperocyparis forbesii stands) through stands of cypress, may degrade four decades on and around Otay in California for the time period from habitat but does not fragment a Mountain (see Table 1), our analysis 2070 to 2099 (Lenihan et al. 2003, p. population. Therefore, in order for confirms Dunn’s conclusion that fire 1674) (for recent information on future butterfly habitat to be considered does not have a significant impact on climate predictions, see Factor E fragmented, movement must be the cypress forest on Otay Mountain discussion). Lenihan et al. (2003, p. prevented by a barrier, or the distance (Dunn 1986, p. 374). A recent survey 1674) found that the most prominent between remaining host plants where documented that not all Hesperocyparis feature of the vegetation class’s response larvae develop must be greater than forbesii individuals within mapped fire to the drier model scenario was the adult butterflies will move to mate or perimeters are burned (Anderson 2010, advancement of grassland into the deposit eggs. If it occurred, habitat p. 1). Only 11 of 122 Thorne’s hairstreak historical range of mixed evergreen fragmentation might create smaller, butterfly observation locations recorded woodland and shrubland. Such more vulnerable populations (see Factor in 2010 by Lucas (unpublished data vegetation changes could reduce host E discussion below); however, the best 2010) and only 17 percent of the plant and nectar source availability for available information indicates that associated cypress forest fell within Thorne’s hairstreak butterfly, as woody habitat fragmentation has not occurred both the 2003 and 2007 mapped fire vegetation declines and grasses replace on Otay Mountain (see Distribution and perimeters (Carlsbad Fish and Wildlife native flowering forbs. Based on the Population Status section above). Office GIS database). Throughout the above discussion, nectar source Hesperocyparis forbesii has areas that burned again in 2007, cypress availability may be a determining factor demonstrated an ability to recolonize regrowth and Thorne’s hairstreak in Thorne’s hairstreak butterfly after fire events on Otay Mountain, and butterflies were observed in 2010. occupancy; however, the general data obtained since publication of the Furthermore, recent border fence climate change vegetation effect models 2010 90-day finding (75 FR 17062) construction and other enforcement (Lenihan et al. 2003, p. 1674) found the indicate Thorne’s hairstreak butterfly is activities in the Otay Mountain simulated response to changes in able disperse through wind events Wilderness area have reduced foot precipitation were complex, involving between any temporarily isolated traffic by illegal immigrants from changes in tree-grass competition patches of H. forbesii (see Distribution Mexico (Ford 2010, p. 1), reducing the mediated by fire. and Population Status section above). likelihood of fire ignition resulting from We are unable to predict the changes Therefore, we have determined that this source. in climate, especially on a localized, habitat fragmentation is not a threat to As described above, Santa Ana winds small scale such as Otay Mountain, as the subspecies now, nor is it likely to and human-caused ignitions are well as what the impacts to Thorne’s become so in the foreseeable future. important factors in southern hairstreak butterfly and its habitat may California’s shrubland and forest fire be because this area is small relative to Road and Firebreak Construction regimes. Because the Santa Ana wind the resolution of vegetation change Thorne’s hairstreak butterfly habitat is events in fall and winter are driven by prediction models (which used climate relatively protected from most sources large-scale patterns of atmospheric models of intermediate scale to predict of habitat destruction, modification, or

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curtailment because approximately 99 plans (NCCPs) benefit Thorne’s the MSCP (County of San Diego 2008b, percent of its potential habitat (mapped hairstreak butterfly through p. 2; Framework Management Plan) Interior Cypress Forest vegetation; conservation, management, and requires the use of specific adaptive CNDDB GIS database 2007) is within monitoring. Habitat conservation plans management techniques directed at the publicly owned areas that are conserved are developed under section 10 of the conservation and recovery of covered and managed, primarily within the BLM Act to support issuance of permits that species, such as actions that assure Otay Mountain Wilderness and San authorize the limited incidental take of wildfires do not occur too frequently in Diego Multiple Species Conservation listed species in return for conservation areas where species are sensitive to fire. Program (MSCP) subarea plan preserves and management of the species and The Framework Management Plan also (see Habitat Conservation Plans (HCPs) their habitats. The NCCP program is a provides for biological monitoring and and Natural Community Conservation cooperative effort involving the State of preparation of an annual report, and Plans (NCCPs) section and Factor D California and numerous private and based upon this review and biological discussion below). public partners to protect regional monitoring effort, adjustments in the Although road and firebreak habitats and species. The primary management goals can be made as construction has occurred in the past in objective of NCCPs is to conserve necessary (County of San Diego 2008b, stands of Hesperocyparis forbesii where natural communities at the ecosystem p. 2). Because Thorne’s hairstreak Thorne’s hairstreak butterflies have scale while accommodating compatible butterfly is required to be conserved and been observed, these impacts have been land uses. NCCPs help identify, and adaptively managed and monitored relatively limited based on our provide for, the regional or area-wide under the County of San Diego Subarea qualitative comparison of Thorne’s protection of plants, animals, and their Plan, we anticipate land management to hairstreak butterfly and host plant habitats while allowing compatible and protect Thorne’s hairstreak butterfly and locations with Google Earth satellite appropriate economic activity. Many its habitat will continue to be imagery of roads and firebreaks. Because NCCPs are developed in conjunction implemented under the County of San U.S. Customs and Border Protection with HCPs prepared under the Act. Diego Subarea Plan. recently completed construction of the The San Diego Multiple Species Additionally, the Memorandum of border fence and expanded the Conservation Program (MSCP) is a Understanding (MOU) on cooperation in associated ‘‘pack trail’’ into a wider subregional HCP and NCCP made up of habitat conservation planning and ‘‘truck trail’’ to accommodate vehicles, several subarea plans that has been in management issued by BLM in 1994, in the need for further significant Border place for more than a decade. Under the conjunction with the development of Patrol-related construction activities is umbrella of the MSCP, each of the 12 the County of San Diego Subarea Plan not anticipated (Ford 2010, p. 1). Any participating jurisdictions is required to under the MSCP (BLM 1994, pp. 1–8), future firebreak and road construction prepare a subarea plan that implements also applies to the Otay Mountain projects that do occur in Thorne’s the goals of the MSCP within that Wilderness because it falls entirely hairstreak butterfly habitat on Otay particular jurisdiction. within the boundary of this subarea Mountain will be planned so as to Both Thorne’s hairstreak butterfly and plan. As outlined in the MOU (BLM minimize impacts to the butterfly (see Hesperocyparis forbesii are covered 1994, p. 3), BLM is committed to also Factor D below), while reducing the species under the County of San Diego managing their lands (i.e., Otay threat of fire to the subspecies and its MSCP Subarea Plan, although neither Mountain Wilderness) to ‘‘conform host plant by slowing the spread of fire the butterfly nor H. forbesii are covered with’’ the County of San Diego Subarea once ignited (BLM 2010a, pp. 6–7). species under the City of Chula Vista Plan, which in turn requires protection Finally, Williams and Congedo (2008, p. MSCP Subarea Plan. The County of San of Thorne’s hairstreak butterfly’s larval 19) concluded that existing traffic Diego MSCP Subarea Plan encompasses host plant, Hesperocyparis forbesii, and corridors on Otay Mountain did not the majority (859 ac (348 ha)) of H. local chaparral species used as nectar appear to be detrimental to Thorne’s forbesii habitat (Interior Cypress Forest; sources. Therefore, protections provided hairstreak butterfly unless increasing CNDDB GIS database 2007) outside of by the County of San Diego Subarea human traffic contributes to increasing the Otay Mountain Wilderness. The Plan under the MSCP to Thorne’s fire danger. remainder of the H. forbesii habitat hairstreak butterfly and its habitat also The status of the Otay Mountain area outside of the Otay Mountain apply to the Otay Mountain Wilderness. as predominantly wilderness area and Wilderness (approximately 60 ac (24 The 90-day finding (75 FR 17062; preserve (which are managed) indicates ha)) is privately owned in an April 5, 2010) states, ‘‘Approximately 48 this area is unlikely to receive increased Amendment Area for the San Diego ac (19 ha) of Hesperocyparis forbesii legal human traffic. Furthermore, as MSCP Planning Area (see discussion habitat fall under the [County of San noted above, recent border fence below). Within the County of San Diego Diego Subarea Plan], which strives for construction and other enforcement MSCP Subarea Plan, over 99 percent of fire management and prevention to activities in the Otay Mountain H. forbesii habitat (Tecate Cypress restore the previous 25-year [burn return Wilderness area have reduced illegal Forest) is planned for conservation and interval]’’; however, we have since human traffic (Ford 2010, p. 1), thereby management (County of San Diego determined this statement is not reducing the likelihood of fire ignition 2008a, Part 3, Section 2, p. 7), and the accurate. The statement was based on by this source. Therefore, road and majority has already been acquired for the 1994 BLM South Coast Resource firebreak construction is not a conservation. Management Plan that specifies a significant threat to the subspecies now, As noted above, Thorne’s hairstreak minimum planned 25-year burn return nor is it likely to become so in the butterfly and Hesperocyparis forbesii are interval for controlled burns in H. foreseeable future. covered species under the subarea plan forbesii habitat ‘‘east of the Minewawa (Service 1998, p. 6), which requires truck trail on the Otay Mountain Habitat Conservation Plans (HCPs) and protection of Thorne’s hairstreak [Wilderness]’’ (BLM 1994, p. 21). The Natural Community Conservation Plans butterfly host plants and local chaparral Minewawa Truck Trail runs from the (NCCPs) species used as nectar sources. The peak at Doghouse Junction, north to Habitat conservation plans (HCPs) Framework Management Plan for the Otay Lakes Road, dividing the northern and natural community conservation County of San Diego Subarea Plan under half of Otay Mountain into east and

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west quarters. As discussed above, per adjoining habitat to provide viable decreased burn return interval indicates an MOU, BLM has committed to manage wildlife and sensitive species habitat; the indirect effects of climate change on its lands in a manner that complements (4) Facilitate monitoring of selected Thorne’s hairstreak butterfly habitat are the County of San Diego Subarea Plan; target species, habitats, and linkages to not threats to the subspecies now, nor this management commitment was ensure long-term persistence of viable are they predicted for the future. We mistakenly attributed to that HCP in the populations of priority plant and animal have also determined the best available 90-day finding. The 48-ac (19-ha) species; and information indicates habitat estimate was based on the area of H. (5) Ensure functional habitats and fragmentation does not occur within the forbesii stands mapped by Lucas linkages for those species (Service range of Thorne’s hairstreak butterfly. (Forister and Lucas 2009, pp. 1–2) and 2003b, pp.18, 70, FWS–SDG–882.1). We further determined that impacts to located outside the Otay Mountain We believe these management Thorne’s hairstreak butterfly habitat Wilderness. Therefore, the 48-ac (19-ha) prescriptions adequately protect resulting from road and firebreak area estimate is not accurate with regard Thorne’s hairstreak butterfly and its construction have been relatively to the amount of H. forbesii habitat (see habitat within the preserve, and the limited and are not anticipated to Distribution and Population Status adaptive management measures of the increase in the future. Additionally, section above) that is managed by the Chula Vista Subarea Plan allow for approximately 99 percent of all County of San Diego. Our estimate of adjustment of preserve management, as potential Thorne’s hairstreak butterfly the habitat managed by the County of appropriate, to conserve this newly habitat (cypress woodland within San Diego under their subarea plan is discovered population of Thorne’s existing County of San Diego Subarea 859 ac (348 ha) (see discussion above). hairstreak butterfly. Plan preserves, the City of Chula Vista One relatively small area of occupied Finally, BLM does not have any plans Subarea Plan preserve, and Otay cypress forest (approximately 60 ac (24 to conduct controlled burns (see Factor Mountain Wilderness Area) is ha) composed of four butterfly D discussion below) nor is it committed conserved and managed to benefit both observation locations) in the southwest to maintain a 25-year burn return the species and its host plant. Therefore, foothills of Otay Mountain east of Otay interval for such burns (BLM 1994, p. we believe existing HCPs and NCCPs Mesa is privately owned and not within 21), and the County of San Diego provide protection for Thorne’s an approved subarea plan, but falls hairstreak butterfly habitat. Based on Subarea Plan includes the assurance within the MSCP planning area where a that wildfires will not occur too new subarea plan is being developed our review of the best available frequently in areas where species are (i.e., a County of San Diego MSCP scientific and commercial information, sensitive to fire. The BLM draft revised ‘‘Amendment Area’’) (CNDDB GIS we conclude that Thorne’s hairstreak South Coast Resource Management Plan Database 2010). While these habitats are butterfly is not threatened by the specifically includes a goal of restoring not currently protected from threats to present or threatened destruction, burn return interval to 50 years through Thorne’s hairstreak butterfly habitat by modification, or curtailment of its fire prevention or suppression and conservation or management, the habitat or range now or in the prescribed burns (see Factor D majority of this area is also occupied by foreseeable future. discussion below). Current BLM the endangered Quino checkerspot Factor B. Overutilization for prescribed burn practices preclude butterfly (Euphydryas editha quino), Commercial, Recreational, Scientific, or burning of any H. forbesii habitat that and Thorne’s hairstreak butterfly habitat Educational Purposes would not enhance cypress stand is therefore already afforded some We have no information to indicate viability or that would negatively affect indirect protection under section 9 of that overutilization for commercial, Thorne’s hairstreak butterfly (see Factor the Act. D discussion below). Therefore, the recreational, scientific, or educational misrepresented regulatory 25-year burn Summary of Factor A purposes is currently a threat to the return interval issue is not a valid We evaluated several factors with the Thorne’s hairstreak butterfly, nor do we concern with regard to Thorne’s potential to destroy, modify, or curtail anticipate that it will become a threat in hairstreak butterfly conservation. Thorne’s hairstreak butterfly’s habitat or the future. Therefore, based on our The City of Chula Vista Subarea Plan range, including decreasing burn return review of the best available scientific under the MSCP includes a preserve intervals, climate change related to and commercial information, we that encompasses the newly discovered wildfire, habitat fragmentation, and road conclude that Thorne’s hairstreak Otay River Valley occupied site (see and firebreak construction. We also butterfly is not threatened by Distribution and Population Status evaluated the benefits to Thorne’s overutilization for commercial, section above). Thorne’s hairstreak hairstreak butterfly and its habitat recreational, scientific, or educational butterfly and Hesperocyparis forbesii are associated with HCPs and NCCPs. purposes now or in the foreseeable not covered species under this subarea Wildfire can negatively affect the future. plan. However, all lands preserved species’ habitat and in particular its host Factor C. Disease or Predation under the Chula Vista Subarea Plan are plant. However, our analysis does not adaptively managed and maintained to: indicate wildfire events have deviated Disease (1) Ensure the long-term viability and from historical fire frequency or burn Our review of the best available sustainability of native ecosystem return interval patterns. Despite two scientific and commercial data found function and natural processes recent large fires (2003 and 2007), nothing to indicate that disease is a throughout the Preserve; Thorne’s hairstreak butterfly has not threat to Thorne’s hairstreak butterfly (2) Protect existing and restored only survived or recolonized habitats now or in the foreseeable future. biological resources from the impacts of within mapped recent fire perimeters, it human activities within the Preserve has expanded its range. In addition, Predation while accommodating compatible uses; while uncertainty exists regarding the Predation (including parasitism) is a (3) Enhance and restore, where potential effects of climate change on factor that is known to cause mortality feasible, appropriate native plant wildfire and habitat loss, the best in butterflies, and therefore could associations and wildlife connections to available information regarding potentially threaten any butterfly

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species. Faulkner and Klein (2005, p. managed in accordance with the early fire detection as soon as funding 34) stated that birds may consume provisions of the Wilderness Act of allows (Allison 2011, p. 1); and Thorne’s hairstreak butterfly larvae, 1964 (16 U.S.C. 1131 et seq.). The (f) The International Fuelbreak is although we are not aware of any data Wilderness Act of 1964 strictly limits under a Right-of-Way Agreement with that indicate bird predation is a use of wilderness areas, imposing CAL FIRE. significant threat to Thorne’s hairstreak restrictions on vehicle use, new At some point in the future on an as- butterflies. Brachonid wasps (parasitoid developments, chainsaws, mountain needed basis, additional brush clearing insects that deposit eggs in their host bikes, leasing, and mining, in order to and other fuels modifications, including and kill it when offspring emerge as protect the natural habitats of the areas, burning, may occur; however, no plans adults) have been observed near the host maintain species diversity, and enhance exist to perform prescribed burns in plant, but there has been no biological values. Lands acquired by groves of Hesperocyparis forbesii at this documentation of predation on Thorne’s BLM within the Otay Mountain time. Any prescribed burning in the hairstreak butterflies (Faulkner and Wilderness boundaries become part of future within the Otay Mountain Klein 2005, p. 34; Klein 2010a p, 5). One the designated wilderness area and are Wilderness would be designed to potential larval predator observed managed in accordance with all promote conservation of Thorne’s during the 2007 season in large numbers provisions of the Wilderness Act and hairstreak butterfly and reduce the at one occupied site is the nonnative applicable laws (for additional likelihood and need for future listing of seven-spotted ladybird beetle information on applicable laws and the subspecies under the Act (see above (Coccinella septempuctata) (Klein management of the Otay Mountain discussion of BLM-designated sensitive 2010a, pp. 5, 12); however, we are not Wilderness, see discussions below). species for more information). aware of any data indicating the beetles Thorne’s hairstreak butterfly is a Specifically, any future prescribed have negative effects on Thorne’s BLM-designated sensitive species (BLM burns in cypress forest would be limited hairstreak butterfly. 2010b, p. 3). BLM-designated sensitive to low-level understory burns designed Heavy predation and parasitism of species are those species requiring to minimize impacts to H. forbesii and adult insects and their progeny is a special management consideration to would only occur where mature trees common ecological phenomenon, and promote their conservation and reduce have reached maximum cone most species have evolved under the likelihood and need for future production and burning would likely conditions where high mortality due to listing under the Act. This status makes increase stand viability (Allison 2011, p. natural enemies has shaped their Thorne’s hairstreak butterfly 1). Currently, all cypress stands on Otay evolution (see Schmid-Hempel 1995, p. conservation a management priority in Mountain are within fire perimeters 255; Ehrlich et al. 1998). Our review did the Otay Mountain Wilderness (see BLM mapped over the past 10 years; not reveal any specific information 2008, p. 6). however, there is one approximately 97- regarding predation of Thorne’s Fire management activities occur on ac (39-ha) stand near the peak that is hairstreak butterflies, nor do we have Otay Mountain as part of the BLM’s approximately 40 years old, where any indication that predation will current (1994) South Coast Resource burning could be prescribed if wildfire become a threat in the foreseeable Management Plan. Available does not burn it within the next 10 to future. Therefore, based on our review information provided by BLM 15 years (Allison 2011, p. 1). of the best available scientific and summarizes these ongoing management We believe the current management commercial information, we conclude actions (Howe 2010, p. 1): regime undertaken by BLM under the Thorne’s hairstreak butterfly is not (a) The California Department of existing plan is adequate to protect the threatened by predation either now or in Forestry and Fire Protection (CAL FIRE) subspecies and its habitat from threats. the foreseeable future. San Diego Unit is under a contractual However, BLM is collaborating with the agreement to provide fire suppression Service to revise the South Coast Factor D. The Inadequacy of Existing services to BLM-administered Public Resource Management Plan, which Regulatory Mechanisms Lands in San Diego County; covers the Otay Mountain Wilderness. The Act requires us to examine the (b) Planned fire dispatch for the Otay In the current draft revised plan, adequacy of existing regulatory Mountains Wilderness is five engines, Thorne’s hairstreak butterfly and mechanisms with respect to threats that two handcrews, two tanker airplanes, Hesperocyparis forbesii are identified as may place Thorne’s hairstreak butterfly two to three water-drop helicopters, and sensitive species (BLM 2009, p. 3–59), in danger of extinction or likely to assorted command and support and the plan specifically states the become so in the future. Existing personnel; management of these species and their regulatory mechanisms that may have (c) BLM Fire Management provides an habitats are important because of their an effect on potential threats to Thorne’s Initial Attack Dispatch and Agency close association and the importance of hairstreak butterfly can be placed into Representative to ensure appropriate fire cycles to their continued existence. two general categories: (1) Federal actions are taken on a fire incident; Moreover, one of BLM’s primary mechanisms, and (2) State mechanisms. (d) On large incidents, several objectives in the draft revised plan is Resource Specialists may form a team to improved fire management and Federal Mechanisms evaluate fire and fire suppression collaboration with local communities The Otay Mountain Wilderness Act effects. If a determination is made to and agencies to prevent wildfires. The (1999) (Pub. L. 106–145) and BLM pursue fire restoration and repair, these draft revised plan specifically includes management policies provide protection specialists would work with Burned a goal of restoring fire frequency to 50 for the majority of occupied Thorne’s Area Emergency Response (BAER) years through fire prevention or hairstreak butterfly habitat (over 90 Teams to implement appropriate suppression and prescribed burns; once percent of all recorded butterfly actions; an area has not burned for 50 years the observation locations). The Otay (e) Fire Prevention and Law plan allows for annual prescribed Mountain Wilderness Act directs that Enforcement patrols occur on Otay burning of up to 500 ac (202 ha) in the the Otay Mountain designated Mountain, and the Lyons Peak Lookout Otay Mountain Wilderness (BLM 2009, wilderness area (i.e., Otay Mountain Tower (north of the Otay Mountain pp. 4–171¥4–172). Actions Wilderness; 18,500 ac (7,486 ha)) be Wilderness) will reopen to facilitate implemented under the revised plan,

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when final, will be designed to promote are discussed in detail under Factor A geographic areas, and many naturally conservation of Thorne’s hairstreak discussion above. The 90-day finding rare species exhibit traits that allow butterfly and its habitat. (75 FR 17062; April 5, 2010) also them to persist despite their small indicated that grazing and population population sizes. Consequently, the fact State Mechanisms fragmentation were potential threats to that a species is rare or has small The California Environmental Quality the subspecies. In the development of populations does not necessarily Act (CEQA) requires review of any this 12-month finding, we further indicate that it may be in danger of project that is undertaken, funded, or investigated these potential threats and extinction now or in the foreseeable permitted by the State or a local found that grazing does not currently future. We need to consider specific governmental agency. If significant occur on Otay Mountain, nor is it potential threats that might be environmental effects are identified, the planned for the future (Doran 2010, p. exacerbated by rarity or small lead agency has the option of requiring 1; Ford 2010, p. 1; Schlachter 2010, p. population size. Although low genetic mitigation through changes in the 1); therefore, it is not a threat to the variability and reduced fitness from project or deciding that overriding subspecies at this time, nor is it likely inbreeding could occur, at this time we considerations make mitigation to become so in the foreseeable future. have no evidence of genetic problems infeasible (CEQA section 21002). We also determined that population with the Thorne’s hairstreak butterfly. Therefore, protection of sensitive native fragmentation for Thorne’s hairstreak Based on the available information, and species through CEQA is dependent butterfly is dependent on habitat the fact that Thorne’s hairstreak upon the discretion of the lead agency fragmentation, which is discussed above butterfly has survived for an unknown involved. The implementation of CEQA under Factor A, and is not a threat to the number of years, we conclude that encourages protection of Thorne’s species at this time or in the foreseeable genetic variability and reduced fitness hairstreak butterfly and Hesperocyparis future. are not imminent threats now, nor do forbesii where projects are undertaken, we believe they will become threats in Wildfire funded, or permitted by the State or a the foreseeable future. Although we local governmental agency outside of As discussed under Factor A above, have only known of its existence since the Otay Mountain Wilderness, and by wildfire can be a risk factor for Thorne’s 1972 (Brown 1983, p. 246), Thorne’s CAL FIRE within the wilderness area. hairstreak butterfly and its host plant hairstreak butterfly has always been and nectar sources. However, as Summary of Factor D endemic to Otay Mountain (Brown discussed above under Factor D, 1983; Beztler et al. 2003; Faulkner and We considered the adequacy of existing fire prevention and suppression Klein 2005) and has historically existing regulatory mechanisms to activities are already in place to survived fires, drought, and other protect Thorne’s hairstreak butterfly. minimize the impacts of fire on this stochastic events. Therefore, we have no The majority (approximately 90 percent) species to the maximum extent data to indicate that rarity or small of potential Thorne’s hairstreak butterfly practicable, and measures are being population size, in and of themselves, habitat is within the BLM Otay taken to improve such activities. pose a threat to the subspecies at this Mountain Wilderness, and is conserved Although Thorne’s hairstreak butterflies time or in the foreseeable future. and managed to benefit both the species can be killed by wildfire, the best and its host plant. With regard to available information indicates Thorne’s Climate Change wildfire in the Otay Mountain hairstreak butterfly habitat is relatively Downscaled local climate model Wilderness: (1) Prevention activities are resilient and can re-colonize areas after predictions for Thorne’s hairstreak already a focus of management and fire events. butterfly range indicate a warmer, drier occur regularly; (2) suppression climate in the vicinity of Otay Mountain activities are already a focus of Small Population Size (downscaled resolution corresponds to management and occur promptly; and Although we do not have data from the area of Otay Mountain; The Nature (3) if fire is not frequent enough to which to draw conclusions regarding Conservancy Climate Wizard 2010). reduce fuel load, prescribed burns can Thorne’s hairstreak butterfly population Climate Wizard (The Nature occur. Therefore, we believe existing size, we nonetheless considered Conservancy 2010) model calculations regulatory mechanisms already provide whether rarity might pose a potential and predictions for Otay Mountain ample regulatory protection of Thorne’s threat to the species. While small indicate that the average annual hairstreak butterfly from the potential populations are generally at greater risk temperature has increased threat of wildfire (see Factor A above for of extirpation from normal population approximately 0.06 degrees Fahrenheit a discussion of wildfire). Based on our fluctuations due to predation, disease, (°F) (0.03 degrees Celsius (°C)) per year review of the best available scientific changing food supply, and stochastic for the past 50 years (p>.001), will likely and commercial information, we (random) events such as fire, increase another 5 °F (2.8 °C) in the next conclude Thorne’s hairstreak butterfly is corroborating information regarding 40 years (medium and high scenarios), not threatened by the inadequacy of threats beyond rarity is needed to meet and will increase another 6.5 to 7.5 °F existing regulatory mechanisms now, the information threshold indicating (3.6 to 4.2 °C) within the next 70 years nor is it likely to become so in the that the species may warrant listing. In (medium and high scenarios). Otay foreseeable future. the absence of information identifying Mountain average annual precipitation threats to the species and linking those has decreased 0 to 0.1 percent per year Factor E. Other Natural or Manmade threats to the rarity of the species, the over the past 50 years (p=1), is predicted Factors Affecting The Species’ Service does not consider rarity alone to to decrease by up to 7 percent over the Continued Existence be a threat. Further, a species that has next 40 years, and is predicted to Natural and manmade threats to the always had small population sizes or decrease by up to 12 to 13 percent over Thorne’s hairstreak butterfly include has always been rare, yet continues to the next 70 years (medium and high wildfire, small population size, and survive, could be well-equipped to scenarios; The Nature Conservancy climate change. Wildfire is briefly continue to exist into the future. Climate Wizard 2010). These discussed under this factor, and wildfire Many naturally rare species have environmental factors are the primary and climate change related to wildfire persisted for long periods within small driver of (similar but likely at a greater

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scale) models that predict increased fire manmade factors affecting the that the butterfly is not restricted to frequency and scope, and possible continued existence of the Thorne’s isolated patches. Additionally, available Hesperocyparis forbesii population hairstreak butterfly are a threat to the data do not suggest that rarity or small decline (see Factor A discussion above). subspecies either now or in the population size, in and of themselves, However, the models are general and do foreseeable future. pose a threat to the subspecies at this time or in the foreseeable future. not enable us to conclude that host Summary of the Five Factors plant populations would decline Finding significantly or to predict a decrease of This status review found no the specific host plants used by significant threats to Thorne’s hairstreak As required by the Act, we conducted Thorne’s hairstreak butterfly. It is not butterfly related to Factors A, B, C, D, a review of the status of the Thorne’s clear how predicted environmental or E, as described above. hairstreak butterfly and considered the changes would directly affect Thorne’s We find that the best available five factors in assessing whether the hairstreak butterfly and its habitat (i.e., information for Factor A, including Thorne’s hairstreak butterfly is in the H. forbesii) due to the uncertainty of information on the potential effects of danger of extinction or likely to become the models. We are unable to estimate wildfire, climate change related to so in the foreseeable future throughout any direct climate change effects to wildfire, habitat fragmentation, and road all or a significant portion of its range. Thorne’s hairstreak butterfly and firebreak construction, and the We examined the best scientific and populations because the climate beneficial effects of HCPs and NCCPs, commercial information available tolerances of Thorne’s hairstreak indicates that Thorne’s hairstreak regarding the past, present, and future butterfly are unknown, although they butterfly is not threatened by the threats faced by the Thorne’s hairstreak seem to do well at all climate extremes present or threatened destruction, butterfly. We reviewed the petition, modification, or curtailment of its within their current range (all information available in our files, and habitat or range. Analysis of historical elevations). Because we believe the other available published and fire patterns on Otay Mountain and available modeling information on a unpublished information, and we recolonization of habitat following fire potential decrease in the H. forbesii consulted with experts knowledgeable indicate wildfire and road and fire break population (as described above) is too about Thorne’s hairstreak butterfly, construction has not fragmented or general to be a reliable source to predict habitat experts, and representatives reduced habitat in occupied areas. changes in the Thorne’s hairstreak from the BLM and local jurisdictions. While uncertainty exists regarding the During our status review for this butterfly population, we are relying on potential effects of climate change on species, it has become evident that the ecology of the host plant and Zedler wildfire and habitat loss, the best many threat issues are speculative or are (2010) to help us ascertain the available information regarding associated with predicted future climate likelihood of the loss of the host plant decreased burn return interval indicates changes, with no historical or current and thus Thorne’s hairstreak butterfly. this is not a significant threat to the documented direct impacts to the Specifically (and as described in the subspecies. Furthermore, habitat species or its habitat relating to these Wildfire and Climate Change Related to conservation plans (HCPs) and natural issues. Our review of the best available Wildfire section above), Zedler (2010b, community conservation plans (NCCPs) scientific and commercial information p. 2) concluded that it is unlikely the benefit Thorne’s hairstreak butterfly, pertaining to the five threat factors does species would be extirpated in 100 years Hesperocyparis forbesii, and their not support a conclusion that there are in part because the statistical probability habitat through conservation, independent or cumulative threats of of H. forbesii being extirpated from Otay management, and preservation. sufficient imminence, intensity, or Mountain is very low or insignificant. The available information concerning magnitude to indicate that Thorne’s Therefore, the Thorne’s hairstreak overutilization (Factor B) and predation hairstreak butterfly is in danger of butterfly’s distribution seems currently, (Factor C) does not indicate that the extinction (endangered), or likely to and likely to remain limited by the Thorne’s hairstreak butterfly is become endangered within the distribution of its host plant rather than threatened by these factors. We find that foreseeable future (threatened), climate. Thus there is no indication that the best available information throughout its range. Therefore, we have changes in climate would affect the concerning Factor D (Inadequacy of determined that the Thorne’s hairstreak distribution of Thorne’s hairstreak Existing Regulatory Mechanisms) butterfly does not meet the definition of butterfly. Unlike models used to predict indicates that the Thorne’s hairstreak an endangered species or a threatened vegetation changes (such as those butterfly is not threatened by the species under the Act and, as a result, described above under Factor A), no inadequacy of existing regulations. does not warrant listing under the Act niche models or similar analyses have Finally, we find that the best available at this time. been conducted to determine potential information concerning Factor E (Other direct (climate suitability) or indirect Natural or Manmade Factors Affecting Significant Portion of the Range effects (effects of climate on habitat the Species’ Continued Existence) Having determined that Thorne’s suitability) to the butterfly. Therefore, indicates that the Thorne’s hairstreak hairstreak butterfly does not meet the available data is not adequate to butterfly is not threatened individually definition of an endangered or a evaluate the potential direct effects of or cumulatively by the effects of threatened species, we must next predicted climate changes on Thorne’s wildfire, small population size, or consider whether there are any hairstreak butterfly or to indicate that climate change. Post-fire surveys significant portions of the range where the species is currently in danger of indicate Thorne’s hairstreak butterflies Thorne’s hairstreak butterfly is in extinction now or in the foreseeable recolonized all habitat affected by large danger of extinction or is likely to future. fires in 2003 and 2007 that had become endangered in the foreseeable Based on a review of the best previously been documented to be future. available scientific and commercial data occupied (this excluded the recently On the basis of our review, we found regarding wildfire, small population discovered stand within the City of no geographic concentration of threats size, and climate change, we found no Chula Vista Subarea Plan because it was either on public or private lands to reliable evidence that other natural or discovered after the fires), indicating suggest that Thorne’s hairstreak

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butterfly may be in danger of extinction endangered or threatened under the Act www.regulations.gov and upon request in that portion of its range. We found no is not warranted at this time. from the Carlsbad Fish and Wildlife area within the range of Thorne’s We request that you submit any new Office (see ADDRESSES section). hairstreak butterfly where the potential information concerning the status of, or Authors threats are significantly concentrated or threats to, the Thorne’s hairstreak substantially greater than in other butterfly to our Carlsbad Fish and The primary authors of this notice are portions of the range. Therefore, we find Wildlife Office (see ADDRESSES section) the staff members of the Carlsbad Fish factors affecting the subspecies are whenever it becomes available. New and Wildlife Office. essentially uniform throughout its information will help us monitor the range, indicating no portion of the Thorne’s hairstreak butterfly and Authority butterfly’s range warrants further encourage management of this The authority for this section is consideration of possible endangered or subspecies and its habitat. If an section 4 of the Endangered Species Act threatened status under the Act. emergency situation develops for the of 1973, as amended (16 U.S.C. 1531 et We find that the Thorne’s hairstreak Thorne’s hairstreak butterfly or any seq.). butterfly is not in danger of extinction other species, we will act to provide Dated: February 10, 2011. now, nor is it likely to become immediate protection. endangered within the foreseeable Rowan W. Gould, future, throughout all or a significant References Cited Acting Director, Fish and Wildlife Service. portion of its range. Therefore, listing A complete list of references cited is [FR Doc. 2011–4038 Filed 2–22–11; 8:45 am] the Thorne’s hairstreak butterfly as available on the Internet at http:// BILLING CODE 4310–55–P

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Notices Federal Register Vol. 76, No. 36

Wednesday, February 23, 2011

This section of the FEDERAL REGISTER Agenda Agenda contains documents other than rules or proposed rules that are applicable to the 1. Welcome by Under Secretary of Wednesday, March 9 public. Notices of hearings and investigations, Commerce for Industry and Security. Open Session committee meetings, agency decisions and 2. Opening remarks by the Chairman. rulings, delegations of authority, filing of 1. Welcome and Introductions. petitions and applications and agency 3. Presentation of papers or comments 2. Update on Regulatory Modernization. statements of organization and functions are by the public. 3. Discussion of technical definitions. examples of documents appearing in this 4. Export Control Reform Update. 4. Assessment of BIS technical section. 5. Administrative issues. capabilities and resources. The open session will be accessible 5. Review of methodologies for DEPARTMENT OF AGRICULTURE via teleconference to 20 participants on identifying emerging technologies. a first come, first served basis. To join 6. Deliberations on suitable Forest Service the conference, submit inquiries to Ms. methodologies for BIS. Yvette Springer at Thursday, March 10 Thorne Bay Ranger District; Alaska; [email protected] no later than Big Thorne Project Environmental March 3, 2011. Open Session Impact Statement A limited number of seats will be 1. Deliberations on suitable available for the public session. methodologies for BIS—continued. Correction Reservations are not accepted. To the Closed Session In notice document 2011–3072 which extent time permits, members of the appears on pages 7807–7809 in the issue public may present oral statements to Discussion of matters determined to of Friday, February 11, 2011, make the the PECSEA. Written statements may be be exempt from the provisions relating following correction: In the ADDRESSES submitted at any time before or after the to public meetings found in 5 U.S.C. section, on page 7808, in the first meeting. However, to facilitate app. 2 §§ 10(a)(1) and 10(a)(3). column, in the sixth line, correct the e- distribution of public presentation The open sessions will be accessible mail address to read as set forth below: materials to PECSEA members, the via teleconference to 20 participants on PECSEA suggests that public a first come, first serve basis. To join the comments-alaska-tongass-thorne- presentation materials or comments be conference, submit inquiries to Ms. [email protected]. forwarded before the meeting to Ms. Yvette Springer at [FR Doc. C1–2011–3072 Filed 2–22–11; 8:45 am] Yvette Springer at [email protected] no later than, BILLING CODE 1505–01–D [email protected]. March 2, 2011. For more information, contact Yvette A limited number of seats will be Springer on 202–482–2813. available for the public session. Reservations are not accepted. To the Dated: February 15, 2011. DEPARTMENT OF COMMERCE extent that time permits, members of the Kevin J. Wolf, public may present oral statements to Bureau of Industry and Security Assistant Secretary for Export the Committee. The public may submit Administration. written statements at any time before or President’s Export Council; [FR Doc. 2011–3918 Filed 2–22–11; 8:45 am] after the meeting. However, to facilitate Subcommittee on Export BILLING CODE 3510–JT–P the distribution of public presentation Administration; Notice of Open materials to the Committee members, Meeting the Committee suggests that presenters DEPARTMENT OF COMMERCE forward the public presentation The President’s Export Council Bureau of Industry and Security materials prior to the meeting to Ms. Subcommittee on Export Springer via email. Administration (PECSEA) will meet on Emerging Technology and Research The Assistant Secretary for March 10, 2011, 1 p.m., at the U.S. Advisory Committee; Notice of Administration, with the concurrence of Department of Commerce, Herbert C. Partially Closed Meeting the delegate of the General Counsel, Hoover Building, Room 4830, 14th formally determined on February 9, Street between Pennsylvania and The Emerging Technology and 2011, pursuant to Section 10(d) of the Constitution Avenues, NW., Research Advisory Committee (ETRAC) Federal Advisory Committee Act, as Washington, DC. The PECSEA provides will meet on March 9 and 10, 2011, 8:30 amended, that the portion of the advice on matters pertinent to those a.m., Room 3884, at the Herbert C. meeting dealing with matters which portions of the Export Administration Hoover Building, 14th Street between would be likely to frustrate significantly Act, as amended, that deal with United Pennsylvania and Constitution implementation of a proposed agency States policies of encouraging trade with Avenues, NW., Washington, DC. The action as described in 5 U.S.C. all countries with which the United Committee advises the Office of the 552b(c)(9)(B) shall be exempt from the States has diplomatic or trading Assistant Secretary for Export provisions relating to public meetings relations and of controlling trade for Administration on emerging technology found in 5 U.S.C. app. 2 §§ 10(a)1 and national security and foreign policy and research activities, including those 10(a)(3). The remaining portions of the reasons. related to deemed exports. meeting will be open to the public.

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For more information, call Yvette condition of purchase in either Dated: February 15, 2011. Springer at (202) 482–2813. government-to-government or Kevin J. Wolf, Dated: February 17, 2011. commercial sales of defense articles Assistant Secretary for Export Administration. Yvette Springer, and/or defense services, as defined by the Arms Export Control Act and the Committee Liaison Officer. [FR Doc. 2011–3916 Filed 2–22–11; 8:45 am] International Traffic in Arms BILLING CODE 3510–JT–P [FR Doc. 2011–4027 Filed 2–22–11; 8:45 am] Regulations. For example, a company BILLING CODE 3510–JT–P that is selling a fleet of military aircraft to a foreign government may agree to DEPARTMENT OF COMMERCE offset the cost of the aircraft by DEPARTMENT OF COMMERCE providing training assistance to plant International Trade Administration Bureau of Industry and Security managers in the purchasing country. Although this distorts the true price of North American Free Trade Agreement, [Docket No. 110207100–1092–02] the aircraft, the foreign government may Article 1904 NAFTA Panel Reviews; require this sort of extra compensation Request for Panel Review Reporting for Calendar Year 2010 on as a condition of awarding the contract Offsets Agreements Related to Sales AGENCY: NAFTA Secretariat, United to purchase the aircraft. States Section, International Trade of Defense Articles or Defense Section 723(a)(1) of the DPA requires Services to Foreign Countries or Administration, Department of the President to submit an annual report Commerce. Foreign Firms to the Congress on the impact of offsets ACTION: Notice of First Request for Panel on the U.S. defense industrial base. AGENCY: Bureau of Industry and Review. Security, Department of Commerce. Section 723 directs the Secretary of Commerce (Secretary) to function as the ACTION: Notice; annual reporting SUMMARY: On February 11, 2011, President’s executive agent for carrying requirements. ThyssenKrupp Mexinox S.A. de C.V. out the responsibilities set forth in that and Mexinox USA, Inc. (collectively SUMMARY: This notice is to remind the section and authorizes the Secretary to ‘‘Mexinox’’) filed a First Request for public that U.S. firms are required to develop and administer the regulations Panel Review with the United States report annually to the Department of necessary to collect offsets data from Section of the NAFTA Secretariat Commerce (Commerce) on contracts for U.S. defense exporters. pursuant to Article 1904 of the North the sale of defense articles or defense The authorities of the Secretary American Free Trade Agreement. Panel services to foreign countries or foreign regarding offsets have been delegated to Review was requested of the final firms that are subject to offsets the Under Secretary of Commerce for determination of the U.S. Department of agreements exceeding $5,000,000 in Industry and Security. The regulations Commerce’s International Trade value. U.S. firms are also required to associated with offsets reporting are set Administration regarding Stainless Steel report annually to Commerce on offsets forth in part 701 of title 15 of the Code Sheet and Strip in Coils from Mexico. transactions completed in performance of Federal Regulations. This determination was published in of existing offsets commitments for As described in those regulations, the Federal Register (76 FR 2332), on which offsets credit of $250,000 or more U.S. firms are required to report on January 13, 2011. The NAFTA has been claimed from the foreign contracts for the sale of defense articles Secretariat has assigned Case Number representative. This year, such reports or defense services to foreign countries USA–MEX–2011–1904–01 to this must include relevant information from or foreign firms that are subject to request. offsets agreements exceeding $5,000,000 calendar year 2010 and must be FOR FURTHER INFORMATION CONTACT: submitted to Commerce no later than in value. U.S. firms are also required to report annually on offsets transactions Valerie Dees, United States Secretary, June 15, 2011. completed in performance of existing NAFTA Secretariat, Suite 2061, 14th ADDRESSES: Reports should be offsets commitments for which offsets and Constitution Avenue, NW., ‘‘ addressed to Offsets Program Manager, credit of $250,000 or more has been Washington, DC 20230, (202) 482–5438. U.S. Department of Commerce, Office of claimed from the foreign representative. SUPPLEMENTARY INFORMATION: Chapter Strategic Industries and Economic Commerce’s annual report to Congress 19 of the North American Free Trade Security, Bureau of Industry and includes an aggregated summary of the Agreement (‘‘Agreement’’) established a Security, Room 3878, Washington, DC data reported by industry in accordance mechanism to replace domestic judicial 20230.’’ with the offsets regulation and the DPA. review of final determinations in FOR FURTHER INFORMATION CONTACT: As provided by section 723(c) of the antidumping and countervailing duty Ronald DeMarines, Office of Strategic DPA, BIS will not publicly disclose the cases involving imports from a NAFTA Industries and Economic Security, information it receives through offsets country with review by independent Bureau of Industry and Security, U.S. reporting unless the firm furnishing the binational panels. When a Request for Department of Commerce, telephone: information specifically authorizes Panel Review is filed, a panel is 202–482–3755; fax: 202–482–5650; e- public disclosure. The information established to act in place of national mail: [email protected]. collected is sorted and organized into an courts to review expeditiously the final SUPPLEMENTARY INFORMATION: aggregate report of national offsets data, determination to determine whether it and therefore does not identify conforms with the antidumping or Background company-specific information. countervailing duty law of the country In 2009, the Congress reauthorized the In order to enable BIS to prepare the that made the determination. Defense Production Act of 1950 (DPA), next annual offset report reflecting Under Article 1904 of the Agreement, and added a new section 723 to that calendar year 2010 data, U.S. firms must which came into force on January 1, Act, which replaced prior section 309 submit required information on offsets 1994, the Government of the United and addresses offsets in defense trade agreements and offsets transactions from States, the Government of Canada, and (See 50 U.S.C. app. 2172). Offsets are calendar year 2010 to BIS no later than the Government of Mexico established compensation practices required as a June 15, 2011. Rules of Procedure for Article 1904

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Binational Panel Reviews (‘‘Rules’’). DATES: Written comments must be II. Method of Collection These Rules were published in the submitted on or before April 25, 2011. The economic surveys will be Federal Register on February 23, 1994 ADDRESSES: Direct all written comments conducted via in-person interviews (59 FR 8686). to Diana Hynek, Departmental when a fishing trip is completed. A first Request for Panel Review was Paperwork Clearance Officer, Captains of selected vessels by the creel filed with the United States Section of Department of Commerce, Room 6616, survey will also be surveyed on the the NAFTA Secretariat, pursuant to 14th and Constitution Avenue, NW., information about trip costs, input Article 1904 of the Agreement, on Washington, DC 20230 (or via the usage, and input prices. February 11, 2011, requesting a panel Internet at [email protected]). review of the determination and order III. Data FOR FURTHER INFORMATION CONTACT: described above. OMB Control Number: None. Requests for additional information or The Rules provide that: Form Number: None. copies of the information collection (a) A Party or interested person may Type of Review: Regular submission instrument and instructions should be challenge the final determination in (new information collection). whole or in part by filing a Complaint directed to Minling Pan, National Affected Public: Business or other for- in accordance with Rule 39 within 30 Marine Fisheries Service, (808) 983– profit organizations. days after the filing of the first Request 5347 or [email protected]. Estimated Number of Respondents: for Panel Review (the deadline for filing SUPPLEMENTARY INFORMATION: 1,200. a Complaint is March 14, 2011); Estimated Time per Response: 10 (b) A Party, investigating authority or I. Abstract minutes per trip survey. interested person that does not file a The National Marine Fisheries Service Estimated Total Annual Burden Complaint but that intends to appear in (NMFS) proposes to collect information Hours: 200. support of any reviewable portion of the about fishing expenses in the American Estimated Total Annual Cost to final determination may participate in Samoa, Guam, and the Commonwealth Public: $0. the panel review by filing a Notice of of the Northern Mariana Islands (CNMI) Appearance in accordance with Rule 40 IV. Request for Comments boat-based reef fish, bottomfish, and within 45 days after the filing of the first pelagics fisheries with which to conduct Comments are invited on: (a) Whether Request for Panel Review (the deadline economic analyses that will improve the proposed collection of information for filing a Notice of Appearance is fishery management in those fisheries; is necessary for the proper performance March 28, 2011); and of the functions of the agency, including (c) The panel review shall be limited satisfy NMFS’ legal mandates under Executive Order 12866, the Magnuson- whether the information shall have to the allegations of error of fact or law, practical utility; (b) the accuracy of the including the jurisdiction of the Steven Fishery Conservation and Management Act (U.S.C. 1801 et seq.), agency’s estimate of the burden investigating authority, that are set out (including hours and cost) of the in the Complaints filed in panel review the Regulatory Flexibility Act, the Endangered Species Act, and the proposed collection of information; (c) and the procedural and substantive ways to enhance the quality, utility, and defenses raised in the panel review. National Environmental Policy Act; and quantify achievement of the clarity of the information to be Dated: February 16, 2011. performances measures in the NMFS collected; and (d) ways to minimize the Valerie Dees, Strategic Operating Plans. An example burden of the collection of information United States Secretary, NAFTA Secretariat. of these performance measures: the on respondents, including through the [FR Doc. 2011–3941 Filed 2–22–11; 8:45 am] economic data collected will allow use of automated collection techniques BILLING CODE 3510–GT–P quantitative assessment of the fisheries or other forms of information sector’s social and economic technology. contribution, linkages and impacts of Comments submitted in response to DEPARTMENT OF COMMERCE the fisheries sector to the overall this notice will be summarized and/or economy through Input-output (I–O) included in the request for OMB National Oceanic and Atmospheric models analyses. Results from I–O approval of this information collection; Administration analyses will not only provide they also will become a matter of public indicators of social-economic benefits of record. Proposed Information Collection; the marine ecosystem, a performance Comment Request; Economic Surveys Dated: February 16, 2011. measure in the NMFS Strategic of American Samoa, Guam, and the Gwellnar Banks, Operating Plans, but also be used to Commonwealth of the Northern Management Analyst, Office of the Chief assess how fishermen and economy will Mariana Islands (CNMI) Small Boat- Information Officer. be impacted by and respond to Based Fisheries [FR Doc. 2011–3942 Filed 2–22–11; 8:45 am] regulations likely to be considered by BILLING CODE 3510–22–P AGENCY: National Oceanic and fishery managers. These data will be Atmospheric Administration (NOAA). collected in conjunction with catch and ACTION: Notice. effort data already being collected in DEPARTMENT OF COMMERCE this fishery as part of its creel survey SUMMARY: The Department of program.1 Participation in the economic National Oceanic and Atmospheric Commerce, as part of its continuing data collection will be voluntary. Administration effort to reduce paperwork and RIN 0648–XA240 respondent burden, invites the general 1 The Creel Survey Program is one of the major public and other Federal agencies to data collection systems to monitor fisheries North Pacific Fishery Management take this opportunity to comment on resources in these three geographic areas. The survey monitors the islands’ fishing activities and Council; Public Meeting proposed and/or continuing information interviews returning fishermen at the most active collections, as required by the launching ramps/docks during selected time AGENCY: National Marine Fisheries Paperwork Reduction Act of 1995. periods on the islands. Service (NMFS), National Oceanic and

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Atmospheric Administration (NOAA), DEPARTMENT OF COMMERCE datasets and recommends which Commerce. datasets are appropriate for assessment National Oceanic and Atmospheric analyses. The product of the Assessment ACTION: Notice of a public meeting. Administration Process is a stock assessment report RIN 0648–XA238 which describes the fisheries, evaluates SUMMARY: The North Pacific Fishery the status of the stock, estimates Management Council’s Scallop Plan Fisheries of the South Atlantic; biological benchmarks, projects future Team will meet March 7–8, 2011 in the Southeast Data, Assessment, and population conditions, and recommends Council Office at the Old Federal Review (SEDAR); Public Meeting research and monitoring needs. The Building. AGENCY: National Marine Fisheries assessment is independently peer DATES: The meeting will be held March Service (NMFS), National Oceanic and reviewed at the Review Workshop. The 7, 2011, from 10:30 a.m. to 5 p.m. and Atmospheric Administration (NOAA), product of the Review Workshop is a March 8, 2011, from 9 a.m. to 3 p.m. Commerce. Summary documenting Panel opinions ACTION: Notice of SEDAR 25 South regarding the strengths and weaknesses ADDRESSES: The meeting will be held at Atlantic data webinar for black sea bass of the stock assessment and input data. the Old Federal Building, 605 W. 4th and golden tilefish. Participants for SEDAR Workshops are Avenue, #205, Anchorage, AK. appointed by the Gulf of Mexico, South Council address: North Pacific SUMMARY: The SEDAR 25 assessment of Atlantic, and Caribbean Fishery Fishery Management Council, 605 W. the South Atlantic black sea bass Management Councils and NOAA 4th Ave., Suite 306, Anchorage, AK (Centropristis striata) and golden tilefish Fisheries Southeast Regional Office, (Lopholatilus chamaeleonticeps) will 99501–2252. HMS Management Division, and consist of a series of workshops and Southeast Fisheries Science Center. FOR FURTHER INFORMATION CONTACT: webinars: This notice is for a webinar Diana Stram, Council staff; telephone: associated with the Data portion of the Participants include data collectors and (907) 271–2809. SEDAR process. See SUPPLEMENTARY database managers; stock assessment INFORMATION. scientists, biologists, and researchers; SUPPLEMENTARY INFORMATION: constituency representatives including DATES: The SEDAR 25 data webinar will Agenda: The Scallop Plan Team will fishermen, environmentalists, and be held March 24, 2011 beginning at 9 review stock status of statewide scallop NGO’s; International experts; and staff a.m. and is expected to last of Councils, Commissions, and state and stocks, compile Scallop SAFE report approximately 3 hours. The established federal agencies. and recommend catch specifications, time may be adjusted as necessary to and review and comment on EFH accommodate the timely completion of SEDAR 25 Data webinar: Participants amendments for scallop. discussion relevant to the data will present summary data, and discuss Although non-emergency issues not workshop process. Such adjustments data needs and treatments. contained in this agenda may come may result in the meeting being Although non-emergency issues not before this group for discussion, those extended from, or completed prior to contained in this agenda may come issues may not be the subject of formal the time established by this notice. before this group for discussion, those action during these meetings. Action ADDRESSES: The meetings will be held issues may not be the subject of formal will be restricted to those issues via webinar. The webinar is open to action during this webinar. Action will specifically listed in this notice and any members of the public. Those interested be restricted to those issues specifically issues arising after publication of this in participating should contact Kari listed in this notice and any issues FOR FURTHER notice that require emergency action Fenske at SEDAR (See arising after publication of this notice INFORMATION CONTACT) to request an under section 305(c) of the Magnuson- that require emergency action under invitation providing webinar access Stevens Fishery Conservation and section 305(c) of the Magnuson-Stevens information. Management Act, provided the public Fishery Conservation and Management has been notified of the Council’s intent FOR FURTHER INFORMATION CONTACT: Kari Act, provided the public has been to take final action to address the Fenske, SEDAR Coordinator, 4055 Faber notified of the Council’s intent to take emergency. Place, Suite 201, North Charleston, SC final action to address the emergency. 29405; telephone: (843) 571–4366; e- Special Accommodations mail: [email protected]. Special Accommodations SUPPLEMENTARY INFORMATION: The Gulf These meetings are physically This meeting is physically accessible accessible to people with disabilities. of Mexico, South Atlantic, and Caribbean Fishery Management to people with disabilities. Requests for Requests for sign language sign language interpretation or other interpretation or other auxiliary aids Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf auxiliary aids should be directed to the should be directed to Gail Bendixen at States Marine Fisheries Commissions Council office (see ADDRESSES) at least (907) 271–2809 at least 7 working days have implemented the Southeast Data, 10 business days prior to the meeting. prior to the meeting date. Assessment and Review (SEDAR) Dated: February 17, 2011. Dated: February 17, 2011. process, a multi-step method for Tracey L. Thompson, determining the status of fish stocks in Tracey L. Thompson, Acting Director, Office of Sustainable Acting Director, Office of Sustainable the Southeast Region. SEDAR is a three- Fisheries, National Marine Fisheries Service. step process including: (1) Data Fisheries, National Marine Fisheries Service. [FR Doc. 2011–3968 Filed 2–22–11; 8:45 am] [FR Doc. 2011–3979 Filed 2–22–11; 8:45 am] Workshop, (2) Assessment Process utilizing webinars and workshops (3) BILLING CODE 3510–22–P BILLING CODE 3510–22–P Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential

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DEPARTMENT OF COMMERCE sign language interpretation or other Policy Board may be submitted at any time. auxiliary aids should be directed to Gail However, if individual comments pertain to National Oceanic and Atmospheric Bendixen at (907) 271–2809 at least 7 a specific topic being discussed at a planned Administration working days prior to the meeting date. meeting then these statements must be submitted no later than five business days RIN 0648–XA241 Dated: February 17, 2011. prior to the meeting in question. The Tracey L. Thompson, Designated Federal Officer will review all North Pacific Fishery Management Acting Director, Office of Sustainable submitted written statements and provide Council; Public Meeting Fisheries, National Marine Fisheries Service. copies to all the committee members. For Further Information Contact: Lt Col [FR Doc. 2011–3980 Filed 2–22–11; 8:45 am] AGENCY: National Marine Fisheries Julie A. Small, Designated Federal Officer, Service (NMFS), National Oceanic and BILLING CODE 3510–22–P (703) 697–4486 (Voice), (703) 693–5371 Atmospheric Administration (NOAA), (Facsimile), [email protected]. Mailing address Commerce. is Reserve Forces Policy Board, 7300 Defense ACTION: Notice of a public meeting. DEPARTMENT OF DEFENSE Pentagon, Washington, DC 20301–7300. Website: http://ra.defense.gov/rfpb/. SUMMARY: The North Pacific Fishery Office of the Secretary Dated: February 15, 2011. Management Council’s (Council) Morgan F. Park, Observer Advisory Committee (OAC) Meeting of the Reserve Forces Policy will meet at the Council office in the Board (RFPB) Alternate OSD Federal Register Liaison Officer, Department of Defense. Old Federal Building. AGENCY: Office of the Secretary of [FR Doc. 2011–3973 Filed 2–22–11; 8:45 am] DATES: The meeting will be held on Defense Reserve Forces Policy Board, BILLING CODE 5001–06–P March 22, 2011, from 8:30 a.m. to 4:30 DoD. p.m. ACTION: Notice of Advisory Committee ADDRESSES: The meeting will be held at Meeting. DEPARTMENT OF DEFENSE the Old Federal Building, 605 W. 4th Avenue, #205 Anchorage, AK. SUMMARY: Pursuant to the Federal Office of the Secretary Council address: North Pacific Advisory Committee Act of 1972 (5 Fishery Management Council, 605 W. U.S.C., Appendix, as amended), the [Docket ID: DOD–2011–OS–0023] 4th Ave., Suite 306, Anchorage, AK Sunshine in the Government Act of Privacy Act of 1974; System of 99501–2252. 1976 (5 U.S.C. 552b, as amended), and Records FOR FURTHER INFORMATION CONTACT: 41 CFR 102–3.150, the Department of Nicole Kimball, Council staff; Defense announces the following AGENCY: Office of the Secretary, DoD. telephone: (907) 271–2809. Federal advisory committee meeting: ACTION: Notice to Delete a System of SUPPLEMENTARY INFORMATION: This Name of Committee: Reserve Forces Policy Records. meeting is to review progress on the Board (RFPB). observer restructuring regulatory Date: Tuesday and Wednesday, March SUMMARY: The Office of the Secretary of package, as well as discuss development 22nd and 23rd, 2011. Defense is deleting a system of records of a potential electronic monitoring Time: Tuesday, March 22nd, 2011 (7:50 notice from its existing inventory of system design for less than 60 foot a.m.–3 p.m.); and Wednesday, March 23rd, record systems subject to the Privacy 2011 (7:50 a.m.–12:30 p.m.) Act of 1974, (5 U.S.C. 552a), as vessels that are included under the Location: Meeting address is (03/22/11) observer restructuring action. Electronic Fort Myer Officer’s Club, Arlington, VA amended. monitoring may be a potential 22211; (03/23/11) Pentagon, Conference DATES: This proposed action will be alternative to an observer for some small Room 3E863, Arlington, VA. Mailing address effective without further notice on vessels that will be subject to sampling is Reserve Forces Policy Board, 7300 Defense March 25, 2011 unless comments are Pentagon, Washington, DC 20301–7300. and monitoring requirements under the received which result in a contrary new observer restructuring regulations. Purpose of the Meeting: An open meeting of the Reserve Forces Policy Board. determination. Listen-only teleconference line will be Agenda: Total Force Readiness, Care for provided: (907) 271–2896. The agenda is ADDRESSES: You may submit comments, Our People, and Culture of Relevance, identified by docket number and/or subject to change, and the latest version Effectiveness, and Efficiency. will be posted at http:// Meeting Accessibility: Pursuant to 5 U.S.C. Regulatory Information Number (RIN) www.alaskafisheries.noaa.gov/npfmc/ 552b, as amended, and 41 CFR 102–3.140 and title, by any of the following Although non-emergency issues not through 102–3.165, and the availability of methods: contained in this agenda may come space, this meeting is open to the public. To * Federal Rulemaking Portal: http:// before this group for discussion, those request a seat, contact the Designated Federal www.regulations.gov. Follow the issues may not be the subject of formal Officer not later than 02/28/11 at (703) 697– instructions for submitting comments. 4486, or by e-mail, [email protected]. action during this meeting. Action will * Mail: Federal Docket Management Written Statements: Pursuant to 41 CFR System Office, Mailroom 3C843, 1160 be restricted to those issues specifically 102–3.105(j) and 102–3.140, the public or listed in this notice and any issues interested organizations may submit written Defense Pentagon, Washington, DC arising after publication of this notice statements to the membership of the Reserve 20301–1160. that require emergency action under Forces Policy Board at any time or in Instructions: All submissions received section 305(c) of the Magnuson-Stevens response to the stated agenda of a planned must include the agency name and Fishery Conservation and Management meeting. Written statements should be docket number or Regulatory Act, provided the public has been submitted to the Reserve Forces Policy Information Number (RIN) for this Board’s Designated Federal Officer. The notified of the Council’s intent to take Federal Register document. The general Designated Federal Officer’s contact policy for comments and other final action to address the emergency. information can be obtained from the GSA’s submissions from members of the public Special Accommodations FACA Database—https://www.fido.gov/ facadatabase/public.asp. is to make these submissions available This meeting is physically accessible Written statements that do not pertain to a for public viewing on the Internet at to people with disabilities. Requests for scheduled meeting of the Reserve Forces http://www.regulations.gov as they are

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received without change, including any inventory of record systems subject to REASON: personal identifiers or contact the Privacy Act of 1974, (5 U.S.C. 552a), The Joint Staff Military Personnel information. as amended. Files are covered by existing system of FOR FURTHER INFORMATION CONTACT: Mrs. DATES: This proposed action will be records notices issued by each of the Cindy Allard at (703) 588–6830, or effective without further notice on Military Services and civilian personnel Privacy Act Officer, Freedom of March 25, 2011 unless comments are records are covered by a government- Information Directorate, Washington received which result in a contrary wide system notice and this system Headquarters Services, 1155 Defense determination. notice is duplicative. The applicable Pentagon, Washington, DC 20301–1155. ADDRESSES: You may submit comments, systems of records notices are: SUPPLEMENTARY INFORMATION: The Office identified by docket number and/or Army: A0600–8–104b AHRC, Official of the Secretary of Defense systems of Regulatory Information Number (RIN) Military Personnel Records (August 8, records notices subject to the Privacy and title, by any of the following 2004, 69 FR 51271). Act of 1974, (5 U.S.C. 552a), as methods: Navy: N0070–3, Navy Military amended, have been published in the * Federal Rulemaking Portal: http:// Personnel Records System (April 15, Federal Register and are available from www.regulations.gov. Follow the 2010, 75 FR 19627). the FOR FURTHER INFORMATION CONTACT instructions for submitting comments. Marine Corps: M01070–6, Marine address above. * Mail: Federal Docket Management Corps Official Military Personnel Files The Office of the Secretary of Defense System Office, 1160. Defense Pentagon, (March 17, 2008, 73 FR 14234). proposes to delete one system of records Mailroom 3C843, Washington, DC Air Force: F036 AF PC C, Military notice from its inventory of record 20301–1160. Personnel Records System (October 13, Instructions: All submissions received systems subject to the Privacy Act of 2000, 65 FR 60916). must include the agency name and 1974 (5 U.S.C. 552a), as amended. The DoD civilian records are covered docket number or Regulatory proposed deletion is not within the under OPM/Govt-1, General Personnel Information Number (RIN) for this purview of subsection (r) of the Privacy Records (June 19, 2006, 71 FR 35356). Federal Register document. The general Act of 1974, (5 U.S.C. 552a), as policy for comments and other DELETION: amended, which requires the submissions from members of the public submission of a new or altered system is to make these submissions available JS009ATHD report. for public viewing on the Internet at Anti-Terrorism Awareness Training Dated: February 15, 2011. http://www.regulations.gov as they are Records Files, (February 22, 1993, 58 FR Morgan F. Park, received without change, including any 10557). Alternate OSD Federal Register Liaison personal identifiers or contact Officer, Department of Defense. information. REASON: The Joint Staff does not collect or DELETION: FOR FURTHER INFORMATION CONTACT: Mrs. Cindy Allard at (703) 588–6830, or the maintain training data. DoD Instruction DWHS P14 Privacy Act Officer, Office of Freedom 2000.16, DoD Antiterrorism Standards, establishes that unit commanders and Blood Donor Files (February 22, 1993, of Information, Washington directors are responsible for maintaining 58 FR 10227). Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301–1155. data on training completion. REASON: SUPPLEMENTARY INFORMATION: The Office DELETION: Washington Headquarters Services of the Secretary of Defense systems of (WHS) ceased sponsoring blood drives records notices subject to the Privacy JS003SMB in 2004. Records covered under this Act of 1974, (5 U.S.C. 552a), as Manpower, Personnel and Security system of records notice have been amended, have been published in the System (MPSS) Files (February 22, destroyed in accordance with NARA Federal Register and are available from 1993, 58 FR 10557). authorized records schedule (destroy the FOR FURTHER INFORMATION CONTACT when three years old). WHS no longer address above. REASON: collects or maintains any records The Office of the Secretary of Defense The Joint Staff Manpower, Personnel pertaining to blood donor files. proposes to delete three systems of and Security System files are covered by [FR Doc. 2011–3970 Filed 2–22–11; 8:45 am] records notices from its inventory of existing system of records notices issued BILLING CODE 5001–06–P record systems subject to the Privacy by each of the Military Services and this Act of 1974 (5 U.S.C. 552a), as amended. system notice is duplicative. These The proposed deletion is not within the systems of records notices are: DEPARTMENT OF DEFENSE purview of subsection (r) of the Privacy Army: A0600–8–104b AHRC, Official Act of 1974, (5 U.S.C. 552a), as Military Personnel Records (August 8, Office of the Secretary amended, which requires the 2004, 69 FR 51271). [Docket ID: DOD–2011–OS–0024] submission of a new or altered system Navy: N0070–3, Navy Military report. Personnel Records System (April 15, Privacy Act of 1974; System of Dated: February 15, 2011. 2010, 75 FR 19627). Records Morgan F. Park, Marine Corps: M01070–6, Marine Corps Official Military Personnel Files AGENCY: Office of the Secretary, DoD. Alternate OSD Federal Register Liaison Officer, Department of Defense. (March 17, 2008, 73 FR 14234). ACTION: Notice to Delete three Systems DELETION: Air Force: F036 AF PC C, Military of Records. Personnel Records System (October 13, SUMMARY: The Office of the Secretary of JS007MPD 2000, 65 FR 60916). Defense is deleting three systems of Joint Manpower Automation System [FR Doc. 2011–3971 Filed 2–22–11; 8:45 am] record notices from its existing Files, (February 22, 1993, 58 FR 10557). BILLING CODE 5001–06–P

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DEPARTMENT OF DEFENSE notice from its inventory of record docket number or Regulatory systems subject to the Privacy Act of Information Number (RIN) for this Office of the Secretary 1974 (5 U.S.C. 552a), as amended. The Federal Register document. The general [Docket ID: DOD–2011–OS–0020] proposed deletion is not within the policy for comments and other purview of subsection (r) of the Privacy submissions from members of the public Privacy Act of 1974; System of Act of 1974 (5 U.S.C. 552a), as amended, is to make these submissions available Records which requires the submission of a new for public viewing on the Internet at or altered system report. http://www.regulations.gov as they are AGENCY: Defense Intelligence Agency, received without change, including any DoD. Dated: February 15, 2011. Morgan F. Park, personal identifiers or contact ACTION: Notice to Delete a System of information. Records. Alternate OSD Federal Register Liaison Officer, Department of Defense. FOR FURTHER INFORMATION CONTACT: Mr. SUMMARY: The Defense Intelligence Charles J. Shedrick, 703–696–6488, or Agency proposes to delete a system of DELETION Department of the Air Force Privacy records notice in its existing inventory LDIA 05–0002 Office, Air Force Privacy Act Office, of records systems subject to the Privacy Office of Warfighting Integration and Act of 1974 (5 U.S.C. 552a), as amended. SYSTEM NAME: Chief Information Officer, ATTN: SAF/ DATES: This proposed action will be Retiree Database (February 27, 2007, XCPPI, 1800 Air Force Pentagon, effective without further notice on 72 FR 8699). Washington, DC 20330–1800. March 25, 2011 unless comments are REASON: SUPPLEMENTARY INFORMATION: The received which result in a contrary Department of the Air Force systems of The records contained in this system determination. records notices subject to the Privacy of records have been incorporated into ADDRESSES Act of 1974, (5 U.S.C. 552a), as : You may submit comments, LDIA 10–0002, Foreign Intelligence and amended, have been published in the identified by docket number and/or RIN Counterintelligence Operation Records. number and title, by any of the Federal Register and are available from following methods: [FR Doc. 2011–3975 Filed 2–22–11; 8:45 am] the FOR FURTHER INFORMATION CONTACT * Federal Rulemaking Portal: http:// BILLING CODE 5001–06–P address above. www.regulations.gov. Follow the The proposed systems reports, as instructions for submitting comments. DEPARTMENT OF DEFENSE required by 5 United States Code 552a(r) * Mail: Federal Docket Management of the Privacy Act, were submitted on System Office, 1160 Defense Pentagon, Department of the Air Force February 9, 2011 to the House Mailroom 3C843, Washington, DC Committee on Oversight and 20301–1160. [Docket ID: USAF–2011–0005] Government Reform, the Senate Instructions: All submissions received Committee on Homeland Security and must include the agency name and Privacy Act of 1974; System of Records Governmental Affairs, and the Office of docket number or Regulatory Management and Budget pursuant to Information Number (RIN) for this AGENCY: Department of the Air Force, paragraph 4c of Appendix I to Office of Federal Register document. The general DoD. Management and Budget Circular No. policy for comments and other ACTION: Notice to Alter a System of A–130, ‘‘Federal Agency submissions from members of the public Records. Responsibilities for Maintaining is to make these submissions available Records About Individuals,’’ dated for public viewing on the Internet at SUMMARY: The Department of the Air February 8, 1996, (February 20, 1996, 61 http://www.regulations.gov as they are Force is proposing to alter a system of Federal Register 6427). received without change, including any records notice in its existing inventory Dated: February 10, 2011. personal identifiers or contact of records systems subject to the Privacy Morgan F. Park, information. Act of 1974, (5 U.S.C. 552a), as amended. Alternate OSD Federal Register Liaison FOR FURTHER INFORMATION CONTACT: Ms. Officer, Department of Defense. Theresa Lowery at (202) 231–1193, or DATES: The proposed action will be DIA Privacy Act Coordinator, Records effective on March 25, 2011 unless F036 AF PC G Management Section, 200 MacDill comments are received that would SYSTEM NAME: Blvd., Washington, DC 20340. result in a contrary determination. Selective Reenlistment Consideration SUPPLEMENTARY INFORMATION: The ADDRESSES: You may submit comments, Defense Intelligence Agency systems of identified by docket number and/or (June 11, 1997, 62 FR 31793). records notices subject to the Privacy Regulatory Information Number (RIN) CHANGES: Act of 1974, (5 U.S.C. 552a), as and title, by any of the following * * * * * amended, have been published in the methods: Federal Register and are available from * Federal Rulemaking Portal: http:// SYSTEM LOCATION: the FOR FURTHER INFORMATION CONTACT www.regulations.gov. Follow the address above. instructions for submitting comments. Delete entry and replace with The Defense Intelligence Agency * Mail: Federal Docket Management ‘‘Headquarters Air Force Personnel systems of records notices subject to the System Office, 1160 Defense Pentagon, Center, 550 C Street West, Randolph Air Privacy Act of 1974 (5 U.S.C. 552a), as Mailroom 3C843, Washington, DC Force Base, TX 78150–7412 and at amended, have been published in the 20301–1160. Military Personnel Sections at Air Force Federal Register and are available from Instructions: All submissions received Installations. Official mailing addresses the address above. must include the agency name and are published as an appendix to the Air The Defense Intelligence Agency Force’s compilation of system of proposes to delete a system of records records.’’

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CATEGORIES OF INDIVIDUALS COVERED BY THE NOTIFICATION PROCEDURES: and for contesting contents and SYSTEM: Delete entry and replace with appealing initial agency determinations Delete entry and replace with ‘‘Initial ‘‘Individuals seeking to determine are published in 32 CFR part 806b, Air enlistees within 15 months of original whether this system of records contains Force Instruction 33–332, Air Force expiration term of service; second term information on themselves should Privacy Program and may be obtained career Airmen within 13 months of address written inquiries to the from the system manager.’’ expiration term of service being servicing military personnel section or * * * * * considered for continued service in the visit the servicing military personnel Air Force.’’ section. Official mailing addresses are F036 AF PC G published as an appendix to the Air CATEGORIES OF RECORDS IN THE SYSTEM: Force’s compilation of systems of SYSTEM NAME: Delete entry and replace with records notices. Selective Reenlistment Consideration. ‘‘Individual’s name, Social Security For verification purposes, individual Number (SSN), date of birth, grade, should provide their full name, SSN, SYSTEM LOCATION: home of record and documentation of any details which may assist in locating Headquarters Air Force Personnel the selective reenlistment consideration records, and their signature. Center, 550 C Street West, Randolph Air In addition, the requester must process.’’ Force Base, TX 78150–4712 and at provide a notarized statement or an Military Personnel Sections at Air Force AUTHORITY FOR MAINTENANCE OF THE SYSTEM: unsworn declaration made in Installations. Official mailing addresses accordance with 28 U.S.C. 1746, in the Delete entry and replace with ‘‘10 are published as an appendix to the Air U.S.C. Chapter 833, Enlistments; Air following format: If executed outside the United States: Force’s compilation of system of Force Instruction 36–2606, Reenlistment ‘I declare (or certify, verify, or state) records. in the United States Air Force; and E.O. under penalty of perjury under the laws 9397 (SSN), as amended.’’ CATEGORIES OF INDIVIDUALS COVERED BY THE of the United States of America that the SYSTEM: * * * * * foregoing is true and correct. Executed on (date). (Signature)’. Initial enlistees within 15 months of STORAGE: If executed within the United States, original expiration term of service; Delete entry and replace with its territories, possessions, or second term career Airmen within 13 ‘‘Maintained on electronic storage media commonwealths: ‘I declare (or certify, months of expiration term of service and/or in file binders/cabinets.’’ verify, or state) under penalty of perjury being considered for continued service that the foregoing is true and correct. in the Air Force. RETRIEVABILITY: Executed on (date). (Signature)’.’’ Delete entry and replace with CATEGORIES OF RECORDS IN THE SYSTEM: RECORD ACCESS PROCEDURES: ‘‘Retrieved by name and/or last four Individual’s name, Social Security Delete entry and replace with digits of SSN.’’ Number (SSN), date of birth, grade, ‘‘Individuals seeking to access records home of record and documentation of SAFEGUARDS: about themselves contained in this the selective reenlistment consideration system should address requests to the Delete entry and replace with process. ‘‘Records are accessed by the custodian servicing military personnel section or of the record system and by individuals visit the servicing military personnel AUTHORITY FOR MAINTENANCE OF THE SYSTEM: responsible for servicing the record section. Official mailing addresses are system in performance of their official published as an appendix to the Air 10 U.S.C. Chapter 833, Enlistments; duties and who are properly screened Force’s compilation of systems of Air Force Instruction 36–2606, and cleared for need-to-know. Records records notices. Reenlistment in the United States Air are stored electronically and/or in For verification purposes, individual Force; and E.O. 9397 (SSN), as locked cabinets or rooms. Electronic should provide their full name, SSN, amended. any details which may assist in locating media is accessed by a Common Access PURPOSE(S): Card (CAC).’’ records, and their signature. In addition, the requester must Used by member’s immediate RETENTION AND DISPOSAL: provide a notarized statement or an supervisor, member’s immediate unsworn declaration made in Delete entry and replace with commander, unit career advisor, and accordance with 28 U.S.C. 1746, in the ‘‘Retained for one year after decision base career advisor to determine following format: member’s reenlistment eligibility. made to select individual for If executed outside the United States: consideration of continued service in ‘I declare (or certify, verify, or state) the Air Force. Paper records are ROUTINE USES OF RECORDS MAINTAINED IN THE under penalty of perjury under the laws SYSTEM, INCLUDING CATEGORIES OF USERS AND destroyed by tearing into pieces, of the United States of America that the THE PURPOSES OF SUCH USES: shredding, pulping, macerating, or foregoing is true and correct. Executed In addition to those disclosures burning and electronic records are on (date). (Signature)’. destroyed by magnetic erasing.’’ generally permitted under 5 U.S.C. If executed within the United States, 552a(b) of the Privacy Act of 1974, these its territories, possessions, or SYSTEM MANAGER(S) AND ADDRESS: records contained therein may be commonwealths: ‘I declare (or certify, specifically disclosed outside the DoD Delete entry and replace with verify, or state) under penalty of perjury ‘‘Headquarters Air Force Personnel as a routine use pursuant to 5 U.S.C. that the foregoing is true and correct. 552a(b) as follows: Center, Directorate of Personnel Executed on (date). (Signature)’.’’ Services, Enlisted Skills Management The DoD ‘Blanket Routine Uses’ Branch (HQ AFPC/DPSOA), 550 C CONTESTING RECORD PROCEDURES: published at the beginning of the Air Street West, Suite 10, Randolph Air Deleted entry and replace with ‘‘The Force compilation of systems of records Force Base, TX 78150–4712.’’ Air Force rules for accessing records notices apply to this system.

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POLICIES AND PRACTICES FOR STORING, commonwealths: ‘I declare (or certify, SUMMARY: Pursuant to Section 102(2)(C) RETRIEVING, ACCESSING, RETAINING, AND verify, or state) under penalty of perjury of the National Environmental Policy DISPOSING OF RECORDS IN THE SYSTEM: that the foregoing is true and correct. Act (NEPA) of 1969, as implemented by STORAGE: Executed on (date). (Signature)’. the Council on Environmental Quality regulations (40 CFR parts 1500–1508), Maintained on electronic storage RECORD ACCESS PROCEDURES: media and/or in file binders/cabinets. the Department of the Navy (Navy) has Individuals seeking to access records prepared and filed the Draft RETRIEVABILITY: about themselves contained in this Supplemental Environmental Impact Retrieved by name and or last four system should address requests to the Statement (SEIS) evaluating the digits of SSN. servicing military personnel section or potential environmental consequences visit the servicing military personnel associated with the disposal and reuse SAFEGUARDS: section. Official mailing addresses are of Hunters Point Naval Shipyard (HPS), Records are accessed by the custodian published as an appendix to the Air San Francisco, California. The Navy is of the record system and by individuals Force’s compilation of systems of required to dispose of HPS per Public responsible for servicing the record records notices. Law 101–510, the Defense Base Closure system in performance of their official For verification purposes, individual and Realignment Act of 1990, as duties and who are properly screened should provide their full name, SSN, amended. A public hearing will be held and cleared for need-to-know. Records any details which may assist in locating to provide information and receive oral are stored electronically and/or in records, and their signature. and written comments on the Draft locked cabinets or rooms. Electronic In addition, the requester must SEIS. Federal, State, and local agencies media is accessed by a Common Access provide a notarized statement or an and interested individuals are invited to Card (CAC). unsworn declaration made in be present or represented at the hearing. accordance with 28 U.S.C. 1746, in the Dates and Addresses: One public RETENTION AND DISPOSAL: following format: hearing will be held. The hearing will Retained for one year after decision If executed outside the United States: be preceded by an open information made to select individual for ‘I declare (or certify, verify, or state) session to allow interested individuals consideration of continued service in under penalty of perjury under the laws to review information presented in the the Air Force. Paper records are of the United States of America that the Draft SEIS. Navy representatives will be destroyed by tearing into pieces, foregoing is true and correct. Executed available during the information session shredding, pulping, macerating, or on (date). (Signature)’. to provide clarification as necessary burning and electronic records are If executed within the United States, related to the Draft SEIS. The public destroyed by magnetic erasing. its territories, possessions, or hearing is scheduled as follows: commonwealths: ‘I declare (or certify, Tuesday, March 15, 2011, from 6:30 SYSTEM MANAGER(S) AND ADDRESS: verify, or state) under penalty of perjury p.m. to 8:30 p.m. at the Southeast Headquarters Air Force Personnel that the foregoing is true and correct. Community Facility Community Center, Center, Directorate of Personnel Executed on (date). (Signature)’. Alex L. Pitcher, Jr. Community Room, Services, Enlisted Skills Management CONTESTING RECORD PROCEDURES: 1800 Oakdale Avenue, San Francisco, Branch (HQ AFPC/DPSOA), 550 C The Air Force rules for accessing California 94124. The open information Street West, Suite 10, Randolph Air session will be held on the same date Force Base, TX 78150–4712. records and for contesting contents and appealing initial agency determinations and at the same location, from 5:30 p.m. NOTIFICATION PROCEDURES: are published in 32 CFR part 806b, Air to 6:30 p.m. Individuals seeking to determine Force Instruction 33–332, Air Force FOR FURTHER INFORMATION CONTACT: whether this system of records contains Privacy Program and may be obtained Director, BRAC PMO West, Attn: Mr. information on themselves should from the system manager. Ronald Bochenek, 1455 Frazee Road, address written inquiries to the Suite 900, San Diego, CA 92108–4310, RECORD SOURCE CATEGORIES: telephone 619–532–0906, fax 619–532– servicing military personnel section or Entries are made by the supervisor visit the servicing military personnel 9858, e-mail: and commander, and acknowledged by [email protected]. section. Official mailing addresses are the member. published as an appendix to the Air SUPPLEMENTARY INFORMATION: The Navy, Force’s compilation of systems of EXEMPTIONS CLAIMED FOR THE SYSTEM: as lead agency, has prepared and filed records notices. None. the Draft SEIS for the Disposal and For verification purposes, individual [FR Doc. 2011–3972 Filed 2–22–11; 8:45 am] Reuse of Hunters Point Shipyard, San should provide their full name, SSN, BILLING CODE 5001–06–P Francisco, California in accordance with any details which may assist in locating the requirements of the NEPA of 1969 records, and their signature. (42 U.S.C. 4321–4345) and its In addition, the requester must DEPARTMENT OF DEFENSE implementing regulations (40 CFR parts provide a notarized statement or an 1500–1508). A Notice of Intent (NOI) for unsworn declaration made in Department of the Navy the SEIS was published in the Federal accordance with 28 U.S.C. 1746, in the Register on September 5, 2008 (Federal following format: Notice of Availability of the Draft Register/Vol. 73, No. 173 pgs 51797 & If executed outside the United States: Supplemental Environmental Impact 51798/Friday, September 5, 2008/ ‘I declare (or certify, verify, or state) Statement for the Disposal and Reuse Notices). The purpose of the proposed under penalty of perjury under the laws of Hunters Point Naval Shipyard, San action is the disposal of HPS from of the United States of America that the Francisco, CA, and To Announce Federal ownership (864 acres [421 acres foregoing is true and correct. Executed Public Hearings dry land & 443 acres submerged]) and on (date). (Signature)’. AGENCY: Department of the Navy, DoD. its subsequent reuse by the County and If executed within the United States, City of San Francisco in a manner ACTION: Notice. its territories, possessions, or consistent with the Hunters Point Naval

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Shipyard Redevelopment Plan as Yosemite Slough. No new football and concerns from interested developed by the San Francisco stadium would be constructed. community groups in 2009. The Navy Redevelopment Agency (SFRA) in July Alternative 3 (the ‘‘Non-Stadium Plan/ considered the scoping and outreach 1997, and amended in August 2010. The Additional Housing Alternative’’) does comments in determining the scope of Navy is required to close HPS in not include a new stadium, but is the SEIS. accordance with Public Law 101–510, comprised of a mix of land uses Federal, State, and local agencies, as the Defense Base Closure and including 4,000 residential units, retail well as interested parties, are invited Realignment Act of 1990, as amended. (125,000 sq ft), R&D (2.5 million sq ft), and encouraged to review and comment In accordance with NEPA, before community services (50,000 sq ft), and on the Draft SEIS. Comments can be disposing of any real property, the Navy parks and recreational open space (245 made in the following ways: (1) Oral must analyze the environmental effects acres). The alternative also includes a statements or written comments at the of the disposal of the HPS property. The 300-slip marina, improvements to scheduled public hearing; or (2) written Draft SEIS has identified and considered stabilize the shoreline, and a new bridge comments mailed to the BRAC PMO six reuse alternatives for HPS and a no over Yosemite Slough. address in this notice; or (3) written action alternative. Navy disposal is Alternative 4 (‘‘the Non-Stadium Plan/ comments faxed to the BRAC PMO fax assumed as part of each reuse Reduced Development Alternative’’) number in this notice; or (4) comments alternative. The no action alternative includes a reduced density of submitted via e-mail using the BRAC assumes retention of the HPS property development. Development proposed PMO e-mail address in this notice. by the Government in a ‘‘caretaker under this alternative includes 1,855 The Draft SEIS has been distributed to status’’ and no reuse or redevelopment. residential units, retail (87,500 sq ft), various Federal, State, local agencies, Alternative 1, Stadium Plan R&D (1.75 million sq ft), community and Native American tribes, as well as Alternative, would redevelop HPS with services (50,000 sq ft), and parks and other interested individuals and a wide range of uses including a mixed- recreational open space (245 acres). This organizations. In addition, copies of the use community with 2,650 residential alternative does not include a new Draft SEIS have been distributed to the units, retail (125,000 square feet (sq ft)), stadium, a bridge over Yosemite Slough, following libraries and publicly research and development (R&D) (2.5 a marina, or shoreline stabilization. accessible facilities for public review: million sq ft), community services The ‘‘No Action Alternative’’ is 1. San Francisco Main Library, 100 (50,000 sq ft), and parks and required by NEPA and evaluates the Larkin Street, San Francisco, CA 94102. recreational open space (232 acres). A impacts at HPS in the event that the 2. San Francisco State University major component would include a new property is not disposed. Under this Library, 1360 Holloway Avenue, San 69,000-seat football stadium. This alternative the property would be Francisco, CA 94132. alternative would also include a 300- retained by the Navy in caretaker status. 3. Hastings Law Library, UC Hastings slip marina, improvements to stabilize Existing leases would continue until College of the Law, 200 McAllister the shoreline, and a new bridge over they expire or are terminated, and no Street, 4th Floor, San Francisco, CA Yosemite Slough. New infrastructure new leases would be entered into. No 94102. would serve the development as reuse or redevelopment would occur 4. Jonsson Library of Government necessary. under this alternative. Alternative 1A (the ‘‘Stadium Plan/No For each alternative, the Draft SEIS Documents, Cecil H. Green Library, Bing Bridge Alternative’’) includes the addresses the potential direct, indirect, Wing, Stanford, CA 94305–6004. disposal of HPS by the Navy and its short-term, and long-term impacts on 5. Institute of Governmental Studies reuse with the same level, land use the human and natural environments, Library, UC Berkeley, 109 Moses Hall, types, and density of development as including the following resource areas: #2370, Berkeley, CA 94720. Alternative 1, except that the Yosemite Transportation, traffic, and circulation; 6. San Francisco Redevelopment Slough bridge would not be constructed. air quality and greenhouse gases; noise; Agency (By Appointment), One South Alternative 2 (the ‘‘Non-Stadium Plan/ land use and recreation; visual Van Ness Avenue, Fifth Floor, San Additional R&D Alternative’’) includes resources and aesthetics; Francisco, CA 94103. many of the same components as socioeconomics; hazards and hazardous 7. City Planning Department (By Alternative 1 including 2,650 residential substances; geology and soils; water Appointment), 1650 Mission Street, units, retail (125,000 sq ft), community resources; utilities; public services; Fourth Floor, San Francisco, CA 94103. services (50,000 sq ft), and parks and cultural resources; biological resources; An electronic copy of the Draft SEIS recreational open space (222 acres), a and environmental justice. The analysis is also available for public viewing at 300-slip marina, improvements to also includes an analysis of cumulative http://www.bracpmo.navy.mil. stabilize the shoreline, and a new bridge impacts from other reasonably Equal weight will be given to over Yosemite Slough. Under this foreseeable Federal, State, or local comments received at the scheduled alternative, a new football stadium activities at and around HPS. public hearing and those directly would not be constructed. Instead, an The Navy conducted a public scoping forwarded to BRAC PMO. In the interest additional 2.5 million sq ft, for a total period from September 5 to October 17, of available time, and to ensure all who of 5 million sq ft, of R&D space would 2008, and held a public scoping meeting wish to give oral statements at the be developed. on September 23, 2008, to identify public hearing the opportunity to do so, Alternative 2A (the ‘‘Non-Stadium community concerns and local issues each speaker’s comments will be limited Plan/Housing and R&D Alternative’’) that should be addressed in the SEIS. to three minutes. If a longer statement includes a mix of uses including 4,275 Federal, State, and local agencies and is to be presented, it should be residential units, retail (125,000 sq ft), interested parties provided oral and summarized at the public hearing and R&D (3 million sq ft), community written comments to the Navy and the full text submitted in writing either services (50,000 sq ft), and parks and identified specific issues or topics of at the hearing or mailed or e-mailed to recreational open space (222 acres). This environmental concern that should be the below address. To ensure the alternative would also include a 300- addressed in the SEIS. In addition, the accuracy of the record, all statements slip marina, improvements to stabilize Navy facilitated additional community presented orally at the public hearings the shoreline, and a new bridge over outreach activities to solicit comments should be submitted in writing.

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Comments can be submitted in Competitive Preference Priorities: For 34 CFR parts 74, 75, 77, 79, 82, 84, 85, writing or e-mailed to: Director, BRAC FY 2011, these priorities are competitive 86, 97, 98, and 99. (b) The notice of final PMO West, Attn. Mr. Ronald Bochenek, preference priorities. Under 34 CFR supplemental priorities and definitions 1455 Frazee Road, Suite 900, San Diego, 75.105(c)(2)(i), we award an additional for discretionary grant programs, CA 92108–4310, telephone 619–532– two and a half points to an application published in the Federal Register on 0906, fax 619–532–9858, e-mail: that meets one of the priorities, or an December 15, 2010 (75 FR 78486). [email protected]. additional five points to an application II. Award Information To be considered, all comments must that meets both of these priorities. be received by Tuesday, April 12, 2011. These priorities are: Type of Award: Discretionary grants. Such comments will become part of the Estimated Available Funds: 1. Increasing Postsecondary Success public record and will be responded to $15,000,000. in the Final SEIS. Increasing the number and proportion Note: Funds appropriated for this program Requests for special assistance, sign of high-need students (as defined in this for FY 2010 remain available for obligation language interpretation for the hearing notice) who persist in and complete in FY 2011 pursuant to 20 U.S.C. impaired, language interpreters, or other college or other postsecondary 1067q(b)(1)(B)). auxiliary aids for the scheduled public education and training; and Estimated Average Size of Awards: hearing must be sent by mail or e-mail 2. Enabling More Data-Based Decision- $600,000. to BRAC PMO West, Attn: Mr. Ronald Making Estimated Number of Awards: 25. Bochenek, 1455 Frazee Road, Suite 900, Projects that are designed to collect Note: The Department is not bound by any San Diego, CA 92108–4310, e-mail: estimates in this notice. [email protected]. (or obtain), analyze, and use high- quality and timely data, including data Project Period: Up to 48 months. Dated: February 15, 2011. on program participant outcomes, in III. Eligibility Information D.J. Werner, accordance with privacy requirements Lieutenant Commander, Judge Advocate (as defined in this notice), in the 1. Eligible Applicants: To be eligible General’s Corps, U.S. Navy, Federal Register following priority area: to apply, an institution of higher Liaison Officer. Improving postsecondary student education (IHE) must have submitted [FR Doc. 2011–3966 Filed 2–22–11; 8:45 am] outcomes relating to enrollment, the ‘‘Application for Designation as an BILLING CODE 3810–FF–P persistence, and completion and leading Eligible Institution’’ and must have to career success. received FY 2010 designation as an Definitions: These definitions are eligible institution for programs under DEPARTMENT OF EDUCATION from the notice of final supplemental title III and title V of the HEA. The priorities and definitions for original deadline for applying for Predominantly Black Institutions discretionary grant programs, published designation as an eligible institution Competitive Grant Program; Office of in the Federal Register on December 15, was January 6, 2010. (74 FR 64059– Postsecondary Education; Overview 2010 (75 FR 78486). 64062). However, the FY 2010 eligibility Information; Predominantly Black High-need children and high-need process was reopened with an Institutions Competitive Grant students means children and students at application deadline of September 13, Program; Notice Inviting Applications risk of educational failure, such as 2010 for PBIs (and certain other for New Awards Using Fiscal Year (FY) children and students who are living in institutions) to allow maximum 2010 Funds poverty, who are English learners, who participation of potentially eligible are far below grade level or who are not Catalog of Federal Domestic Assistance applicants (74 FR 49484). The (CFDA) Number: 84.382A. on track to becoming college- or career- regulations explaining the standards for ready by graduation, who have left designation can be found in 34 CFR Dates: Applications Available: school or college before receiving, 607.2 through 607.5. In addition, an February 23, 2011. respectively, a regular high school applicant must— Deadline for Transmittal of diploma or a college degree or (a) Have an enrollment of needy Applications: April 25, 2011. certificate, who are at risk of not students, as defined by section 371(c)(3) Deadline for Intergovernmental graduating with a diploma on time, who of the HEA (20 U.S.C. 1067q(c)(3)). The Review: June 23, 2011. are homeless, who are in foster care, term enrollment of needy students Full Text of Announcement who are pregnant or parenting means the enrollment at the eligible IHE teenagers, who have been incarcerated, with respect to which not less than 50 I. Funding Opportunity Description who are new immigrants, who are percent of the undergraduate students Purpose of Program: The purpose of migrant, or who have disabilities. enrolled in an academic program the Predominantly Black Institutions Privacy requirements means the leading to a degree— (PBI) Program is to strengthen PBIs to requirements of the Family Educational (i) In the second fiscal year preceding carry out programs in the following Rights and Privacy Act (FERPA), 20 the fiscal year for which the areas: science, technology, engineering, U.S.C. 1232g, and its implementing determination is made, were Federal or mathematics (STEM); health regulations in 34 CFR part 99, the Pell Grant recipients for such year; education; internationalization or Privacy Act, 5 U.S.C. 552a, as well as all (ii) Come from families that receive globalization; teacher preparation; or applicable Federal, State and local benefits under a means-tested Federal improving educational outcomes of requirements regarding privacy. benefit program (as defined in section African-American males. Program Authority: Title III, part F, 371(c)(5) of the HEA, 20 U.S.C. Priorities: These priorities are from section 371 of the Higher Education Act 1067q(c)(5)); the notice of final supplemental of 1965, as amended (HEA) (20 U.S.C. (iii) Attended a public or nonprofit priorities and definitions for 1067q). private secondary school that— discretionary grant programs, published Applicable Regulations: (a) The (A) Is in the school district of a local in the Federal Register on December 15, Education Department General educational agency that was eligible for 2010 (75 FR 78486). Administrative Regulations (EDGAR) in assistance under part A of title I of the

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Elementary and Secondary Education (e) Is accredited by a nationally use a 10 point font in charts, tables, Act of 1965, as amended (ESEA) (20 recognized accrediting agency or figures, and graphs. U.S.C. 6301 et seq.), for any year during association determined by the Secretary • Use one of the following fonts: which the student attended such to be a reliable authority as to the Times New Roman, Courier, Courier secondary school; and quality of training offered, or is, New, or Arial. Applications submitted (B) For the purpose of this paragraph according to such an agency or in any other font (including Times and for that year, was determined by the association, making reasonable progress Roman and Arial Narrow) will not be Secretary (pursuant to regulations and toward accreditation; and accepted. after consultation with the State (f) Is not receiving assistance under The page limit does not apply to Part educational agency of the State in which part B of title III or part A of Title V of I, the cover sheet SF 424; Part II, the the school is located) to be a school in the HEA or an annual authorization of budget section, including the narrative which the enrollment of children appropriations under the Act of March budget justification; Part IV, the counted under a measure of poverty 2, 1867 (20 U.S.C. 123). assurances and certifications; or the described in section 1113(a)(5) of the 2. Cost Sharing or Matching: This one-page abstract. The page limit also ESEA (20 U.S.C. 6313(a)(5)) exceeds 30 program does not require cost sharing or does not apply to a table of contents. If percent of the total enrollment of such matching. you include any attachments or school; or appendices not specifically requested, IV. Application and Submission (iv) Are first-generation college these items will be counted as part of Information students, as that term is defined in the program narrative (Part III) for section 402A(h) of the HEA (20 U.S.C. 1. Address to Request Application purposes of the page limit requirement. 1070a–11(h)), and a majority of such Package: Bernadette D. Miles, U.S. You must include your complete first-generation college students are low- Department of Education, 1990 K Street, response to the selection criteria in the income individuals, as that term is NW., Washington, DC 20006. program narrative. defined in section 402A(h) of the HEA Telephone: 202–502–7616, or by e-mail: We will reject your application if you (20 U.S.C. 1070a–11(h)); [email protected]. exceed the page limit. (b) Have an average educational and If you use a telecommunications 3. Submission Dates and Times: general expenditure that is low, per full- device for the deaf (TDD), call the Applications Available: February 23, time equivalent undergraduate student Federal Relay Service (FRS), toll free, at 2011. in comparison with the average 1–800–877–8339. Deadline for Transmittal of educational and general expenditure per Individuals with disabilities can Applications: April 25, 2011. full-time equivalent undergraduate obtain a copy of the application package Applications for grants under this student of IHEs that offer similar in an accessible format (e.g., braille, program must be submitted instruction. The Secretary may waive large print, audiotape, or computer electronically using the Grants.gov this requirement, in accordance with diskette) by contacting the program Apply site (Grants.gov). For information section 392(b) of the HEA (20 U.S.C. contact person listed in this section. (including dates and times) about how 1068a(b)), in the same manner as the 2. Content and Form of Application to submit your application Secretary applies the waiver Submission: Requirements concerning electronically, or in paper format by requirements to grant applicants under the content of an application, together mail or hand delivery if you qualify for section 312(b)(1)(B) of the HEA (20 with the forms you must submit, are in an exception to the electronic U.S.C. 1058(b)(1)(B)); the application package for this submission requirement, please refer to (c) Have an enrollment of program. section IV.7. Other Submission undergraduate students— Page Limit: The application narrative Requirements of this notice. (i) That is at least 40 percent Black is where you, the applicant, address the We do not consider an application American students; selection criteria that reviewers use to that does not comply with the deadline (ii) That is at least 1,000 evaluate your application. You must requirements. undergraduate students; limit the application narrative [Part III] Individuals with disabilities who (iii) Of which not less than 50 percent to no more than 40 pages, using the need an accommodation or auxiliary aid of the undergraduate students enrolled following standards. For purposes of in connection with the application at the institution are low-income determining compliance with the page process should contact the person listed individuals, as that term is defined in limit, each page on which there are under For Further Information Contact section 402A(h) of the HEA (20 U.S.C. words will be counted as one full page in section VII of this notice. If the 1070a–11(h)), or first generation college except as specifically discussed below. Department provides an accommodation students, as that term is defined in • A ‘‘page’’ is 8.5″ × 11″, on one side or auxiliary aid to an individual with a section 402A(h) of the HEA (20 U.S.C. only, with 1″ margins at the top, bottom, disability in connection with the 1070a–11(h)); and and both sides. Page numbers and an application process, the individual’s (iv) Of which not less than 50 percent identifier may be outside of the 1″ application remains subject to all other of the undergraduate students are margin. requirements and limitations in this enrolled in an educational program • Double space (no more than three notice. leading to a bachelor’s or associate’s lines per vertical inch) all text in the Deadline for Intergovernmental degree that the institution is licensed to application narrative, except titles, Review: June 23, 2011. award by the State in which the headings, footnotes, quotations, 4. Intergovernmental Review: This institution is located; references, and captions. Charts, tables, program is subject to Executive Order (d) Is legally authorized to provide, figures, and graphs in the application 12372 and the regulations in 34 CFR and provides, within the State an narrative may be singled spaced and part 79. Information about educational program for which the IHE will count toward the page limit. Intergovernmental Review of Federal awards a bachelor’s degree or, in the • Use a font that is either 12 point or Programs under Executive Order 12372 case of a junior or community college, larger, or no smaller than 10 pitch is in the application package for this an associate’s degree; (characters per inch). However, you may program.

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5. Funding Restrictions: We reference Governmentwide Grants.gov Apply site • You should review and follow the regulations outlining funding at http://www.Grants.gov. Through this Education Submission Procedures for restrictions in the Applicable site, you will be able to download a submitting an application through Regulations section of this notice. copy of the application package, Grants.gov that are included in the 6. Data Universal Numbering System complete it offline, and then upload and application package for this program to Number, Taxpayer Identification submit your application. You may not e- ensure that you submit your application Number, and Central Contractor mail an electronic copy of a grant in a timely manner to the Grants.gov Registry: To do business with the application to us. system. You can also find the Education Department of Education, you must— We will reject your application if you Submission Procedures pertaining to a. Have a Data Universal Numbering submit it in paper format unless, as Grants.gov under News and Events on System (DUNS) number and a Taxpayer described elsewhere in this section, you the Department’s G5 system home page Identification Number (TIN); qualify for one of the exceptions to the at http://www.G5.gov. b. Register both your DUNS number electronic submission requirement and • You will not receive additional and TIN with the Central Contractor submit, no later than two weeks before point value because you submit your Registry (CCR), the Government’s the application deadline date, a written application in electronic format, nor primary registrant database; statement to the Department that you will we penalize you if you qualify for c. Provide your DUNS number and qualify for one of these exceptions. an exception to the electronic TIN on your application; and Further information regarding submission requirement, as described d. Maintain an active CCR registration calculation of the date that is two weeks elsewhere in this section, and submit with current information while your before the application deadline date is your application in paper format. application is under review by the provided later in this section under • You must submit all documents Department and, if you are awarded a Exception to Electronic Submission electronically, including all information grant, during the project period. Requirement. you typically provide on the following You can obtain a DUNS number from You may access the electronic grant forms: the Application for Federal Dun and Bradstreet. A DUNS number application for the Predominantly Black Assistance (SF 424), the Department of can be created within one business day. Institutions Program at Education Supplemental Information for If you are a corporate entity, agency, www.Grants.gov. You must search for SF 424, Budget Information—Non- institution, or organization, you can the downloadable application package Construction Programs (ED 524), and all obtain a TIN from the Internal Revenue for this program by the CFDA number. necessary assurances and certifications. Service. If you are an individual, you Do not include the CFDA number’s • You must attach any narrative can obtain a TIN from the Internal alpha suffix in your search (e.g., search sections of your application as files in Revenue Service or the Social Security for 84.382, not 84.382A). a .PDF (Portable Document) format only. Administration. If you need a new TIN, Please note the following: If you upload a file type other than a please allow two to five weeks for your • When you enter the Grants.gov site, .PDF or submit a password-protected TIN to become active. you will find information about file, we will not review that material. The CCR registration process may take submitting an application electronically • Your electronic application must five or more business days to complete. through the site, as well as the hours of comply with any page-limit If you are currently registered with the operation. requirements described in this notice. CCR, you may not need to make any • Applications received by Grants.gov • After you electronically submit changes. However, please make certain are date and time stamped. Your your application, you will receive from that the TIN associated with your DUNS application must be fully uploaded and Grants.gov an automatic notification of number is correct. Also note that you submitted and must be date and time receipt that contains a Grants.gov will need to update your CCR stamped by the Grants.gov system no tracking number. (This notification registration on an annual basis. This later than 4:30:00 p.m., Washington, DC indicates receipt by Grants.gov only, not may take three or more business days to time, on the application deadline date. receipt by the Department.) The complete. Except as otherwise noted in this Department then will retrieve your In addition, if you are submitting your section, we will not accept your application from Grants.gov and send a application via Grants.gov, you must (1) application if it is received—that is, date second notification to you by e-mail. be designated by your organization as an and time stamped by the Grants.gov This second notification indicates that Authorized Organization Representative system—after 4:30:00 p.m., Washington, the Department has received your (AOR); and (2) register yourself with DC time, on the application deadline application and has assigned your Grants.gov as an AOR. Details on these date. We do not consider an application application a PR/Award number (an ED- steps are outlined in the Grants.gov 3– that does not comply with the deadline specified identifying number unique to Step Registration Guide (see http:// requirements. When we retrieve your your application). www.grants.gov/section910/ application from Grants.gov, we will • We may request that you provide us Grants.govRegistrationBrochure.pdf). notify you if we are rejecting your original signatures on forms at a later 7. Other Submission Requirements: application because it was date and time date. Applications for grants under this stamped by the Grants.gov system after Application Deadline Date Extension program must be submitted 4:30:00 p.m., Washington, DC time, on in Case of Technical Issues with the electronically unless you qualify for an the application deadline date. Grants.gov System: If you are exception to this requirement in • The amount of time it can take to experiencing problems submitting your accordance with the instructions in this upload an application will vary application through Grants.gov, please section. depending on a variety of factors, contact the Grants.gov Support Desk, a. Electronic Submission of including the size of the application and toll free, at 1–800–518–4726. You must Applications. the speed of your Internet connection. obtain a Grants.gov Support Desk Case Applications for grants under the Therefore, we strongly recommend that Number and must keep a record of it. Predominantly Black Institutions you do not wait until the application If you are prevented from Program, CFDA Number 84.382A, must deadline date to begin the submission electronically submitting your be submitted electronically using the process through Grants.gov. application on the application deadline

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date because of technical problems with statement no later than two weeks The Application Control Center accepts the Grants.gov system, we will grant you before the application deadline date. hand deliveries daily between 8:00 a.m. an extension until 4:30:00 p.m., Address and mail or fax your and 4:30:00 p.m., Washington, DC time, Washington, DC time, the following statement to: Bernadette D. Miles, U.S. except Saturdays, Sundays, and Federal business day to enable you to transmit Department of Education, 1990 K Street, holidays. your application electronically or by NW., Washington, DC 20006. FAX: 202– Note for Mail or Hand Delivery of Paper hand delivery. You also may mail your 502–7861. Applications: If you mail or hand deliver application by following the mailing Your paper application must be your application to the Department— instructions described elsewhere in this submitted in accordance with the mail (1) You must indicate on the envelope notice. or hand delivery instructions described and—if not provided by the Department—in If you submit an application after in this notice. Item 11 of the SF 424 the CFDA number, 4:30:00 p.m., Washington, DC time, on b. Submission of Paper Applications including suffix letter, if any, of the the application deadline date, please by Mail. competition under which you are submitting If you qualify for an exception to the your application; and contact the person listed under For (2) The Application Control Center will Further Information Contact in section electronic submission requirement, you mail to you a notification of receipt of your VII of this notice and provide an may mail (through the U.S. Postal grant application. If you do not receive this explanation of the technical problem Service or a commercial carrier) your notification within 15 business days from the you experienced with Grants.gov, along application to the Department. You application deadline date, you should call with the Grants.gov Support Desk Case must mail the original and two copies the U.S. Department of Education Number. We will accept your of your application, on or before the Application Control Center at (202) 245– application if we can confirm that a application deadline date, to the 6288. technical problem occurred with the Department at the following address: Grants.gov system and that that problem U.S. Department of Education, V. Application Review Information affected your ability to submit your Application Control Center, Attention: 1. Selection Criteria: The selection application by 4:30:00 p.m., (CFDA Number 84.382A), LBJ Basement criteria for this program are from 34 CFR Washington, DC time, on the Level 1, 400 Maryland Avenue, SW., 75.209(a) and 75.210, and are as application deadline date. The Washington, DC 20202–4260. follows— Department will contact you after a You must show proof of mailing Need for the project (20 points); determination is made on whether your consisting of one of the following: Quality of the project design (15 application will be accepted. (1) A legibly dated U.S. Postal Service points); postmark. Note: The extensions to which we refer in Quality of project services (15 points); this section apply only to the unavailability (2) A legible mail receipt with the Quality of project personnel (10 of, or technical problems with, the Grants.gov date of mailing stamped by the U.S. points); system. We will not grant you an extension Postal Service. Adequacy of resources (5 points); if you failed to fully register to submit your (3) A dated shipping label, invoice, or Quality of the management plan (20 application to Grants.gov before the receipt from a commercial carrier. points); application deadline date and time or if the (4) Any other proof of mailing Quality of project evaluation (15 technical problem you experienced is acceptable to the Secretary of the U.S. points). unrelated to the Grants.gov system. Department of Education. Additional information regarding these Exception to Electronic Submission If you mail your application through criteria is in the application package for Requirement: You qualify for an the U.S. Postal Service, we do not this competition. exception to the electronic submission accept either of the following as proof 2. Review and Selection Process: We requirement, and may submit your of mailing: remind potential applicants that in application in paper format, if you are (1) A private metered postmark. reviewing applications in any unable to submit an application through (2) A mail receipt that is not dated by discretionary grant competition, the the Grants.gov system because–– the U.S. Postal Service. Secretary may consider, under 34 CFR • You do not have access to the If your application is postmarked after 75.217(d)(3), the past performance of the Internet; or the application deadline date, we will applicant in carrying out a previous • You do not have the capacity to not consider your application. award, such as the applicant’s use of upload large documents to the Note: The U.S. Postal Service does not funds, and compliance with grant Grants.gov system; and uniformly provide a dated postmark. Before conditions. The Secretary may also • No later than two weeks before the relying on this method, you should check consider whether the applicant failed to application deadline date (14 calendar with your local post office. submit a timely performance report or days or, if the fourteenth calendar day c. Submission of Paper Applications submitted a report of unacceptable before the application deadline date by Hand Delivery. quality. falls on a Federal holiday, the next If you qualify for an exception to the In addition, in making a competitive business day following the Federal electronic submission requirement, you grant award, the Secretary also requires holiday), you mail or fax a written (or a courier service) may deliver your various assurances including those statement to the Department, explaining paper application to the Department by applicable to Federal civil rights laws which of the two grounds for an hand. You must deliver the original and that prohibit discrimination in programs exception prevents you from using the two copies of your application by hand, or activities receiving Federal financial Internet to submit your application. on or before the application deadline assistance from the Department of If you mail your written statement to date, to the Department at the following Education (34 CFR 100.4, 104.5, 106.4, the Department, it must be postmarked address: U.S. Department of Education, 108.8, and 110.23). no later than two weeks before the Application Control Center, Attention: An additional factor we consider in application deadline date. If you fax (CFDA Number 84.382A), 550 12th selecting an application for an award is your written statement to the Street, SW., Room 7041, Potomac Center that applicants must provide, as an Department, we must receive the faxed Plaza, Washington, DC 20202–4260. attachment to the application, the

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documentation the institution relied performance reports under 34 CFR If you use a TDD, call the Federal upon to determine that at least 40 75.720(c). For specific requirements on Relay Service (FRS), toll free, at 1–800– percent of the institution’s reporting, please go to http:// 877–8339. undergraduate enrollment are Black www.ed.gov/fund/grant/apply/ VIII. Other Information American students. appforms/appforms.html. Note: The 40 percent requirement applies 4. Performance Measures: The Accessible Format: Individuals with only to undergraduate Black American Secretary has established the following disabilities can obtain this document students and is calculated based upon key performance measures for assessing and a copy of the application package in unduplicated undergraduate enrollment. the effectiveness of the PBI Program: an accessible format (e.g., braille, large Instructions for formatting and submitting a. The percentage change of the print, audiotape, or computer diskette) the verification documentation to e- number of full-time degree-granting on request to the program contact Application are in the application package undergraduate students enrolled at PBIs. person listed under FOR FURTHER for this competition. b. The percentage of first-time, full- INFORMATION CONTACT in section VII of 3. Special Conditions: Under 34 CFR time, degree-seeking undergraduate this notice. 74.14 and 80.12, the Secretary may students at four-year PBIs who were in Electronic Access to This Document: impose special conditions on a grant if their first year of postsecondary You can view this document, as well as the applicant or grantee is not enrollment in the previous year and are all other documents of this Department financially stable; has a history of enrolled in the current year at the same published in the Federal Register, in unsatisfactory performance; has a four-year PBI. text or Adobe Portable Document financial or other management system c. The percentage of first-time, full- Format (PDF), on the Internet at the that does not meet the standards in 34 time, degree-seeking undergraduate following site: http://www.ed.gov/news/ CFR parts 74 or 80, as applicable; has students at two-year PBIs who were in fedregister. To use PDF you must have not fulfilled the conditions of a prior their first year of postsecondary Adobe Acrobat Reader, which is grant; or is otherwise not responsible. enrollment in the previous year and are available free at this site. VI. Award Administration Information enrolled in the current year at the same Note: The official version of this document two-year PBI. 1. Award Notices: If your application is the document published in the Federal d. The percentage of first-time, full- is successful, we notify your U.S. Register. Free Internet access to the official time, degree-seeking undergraduate Representative and U.S. Senators and edition of the Federal Register and the Code students enrolled at four-year PBIs who of Federal Regulations is available on GPO send you a Grant Award Notification graduate within six years of enrollment. Access at: http://www.gpoaccess.gov/nara/ (GAN). We may notify you informally, e. The percentage of first-time, full- index.html. also. time, degree-seeking undergraduate If your application is not evaluated or Dated: February 17, 2010. students enrolled at two-year PBIs who not selected for funding, we notify you. graduate within three years of Eduardo M. Ochoa, 2. Administrative and National Policy Assistant Secretary for Postsecondary Requirements: We identify enrollment. f. Efficiency measure: Federal cost per Education. administrative and national policy [FR Doc. 2011–4021 Filed 2–22–11; 8:45 am] requirements in the application package undergraduate degree at PBIs. BILLING CODE 4000–01–P and reference these and other 5. Continuation Awards: In making a requirements in the Applicable continuation award, the Secretary may Regulations section of this notice. consider, under 34 CFR 75.253, the extent to which a grantee has made We reference the regulations outlining DEPARTMENT OF ENERGY the terms and conditions of an award in ‘‘substantial progress toward meeting the ’’ the Applicable Regulations section of objectives in its approved application. Environmental Management Site- this notice and include these and other This consideration includes the review Specific Advisory Board, Idaho specific conditions in the GAN. The of a grantee’s progress in meeting the National Laboratory GAN also incorporates your approved targets and projected outcomes in its application as part of your binding approved application, and whether the AGENCY: Department of Energy. grantee has expended funds in a manner commitments under the grant. ACTION: Notice of open meeting. 3. Reporting: (a) If you apply for a that is consistent with its approved grant under this competition, you must application and budget. In making a SUMMARY: This notice announces a ensure that you have in place the continuation grant, the Secretary also meeting of the Environmental necessary processes and systems to considers whether the grantee is Management Site-Specific Advisory comply with the reporting requirements operating in compliance with the Board (EM SSAB), Idaho National in 2 CFR part 170 should you receive assurances in its approved application, Laboratory. The Federal Advisory funding under the competition. This including those applicable to Federal Committee Act (Pub. L. 92–463, 86 Stat. does not apply if you have an exception civil rights laws that prohibit 770) requires that public notice of this under 2 CFR 170.110(b). discrimination in programs or activities meeting be announced in the Federal (b) At the end of your project period, receiving Federal financial assistance Register. you must submit a final performance from the Department (34 CFR 100.4, report, including financial information, 104.5, 106.4, 108.8, and 110.23). DATES: Tuesday, March 15, 2011, 8 a.m.–5 p.m. as directed by the Secretary. If you VII. Agency Contact receive a multi-year award, you must Opportunities for public participation submit an annual performance report FOR FURTHER INFORMATION CONTACT: will be from 10:15 a.m. to 10:30 a.m. that provides the most current Bernadette D. Miles, Institutional and from 2:15 p.m. to 2:30 p.m. performance and financial expenditure Services, U.S. Department of Education, These times are subject to change; information as directed by the Secretary 1990 K Street, NW., Washington, DC please contact the Federal Coordinator under 34 CFR 75.118. The Secretary 20006. Telephone: 202–502–7616, or by (below) for confirmation of times prior may also require more frequent e-mail: [email protected]. to the meeting.

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ADDRESSES: Hilton Garden Inn, 700 Federal Coordinator, at the address and Applicants: Nautilus Pipeline Lindsey Boulevard, Idaho Falls, Idaho phone number listed above. Minutes Company, L.L.C. 83402. will also be available at the following Description: Nautilus Pipeline FOR FURTHER INFORMATION CONTACT: Web site: http://www.inlemcab.org/ Company, L.L.C. submits tariff filing per Robert L. Pence, Federal Coordinator, meetings.html. 154.204: Non-Conforming Agreements Department of Energy, Idaho Operations Issued at Washington, DC, on February 17, to be effective 12/1/2010. Office, 1955 Fremont Avenue, MS– 2011. Filed Date: 02/14/2011. 1203, Idaho Falls, Idaho 83415. Phone LaTanya Butler, Accession Number: 20110214–5163. (208) 526–6518; Fax (208) 526–8789 or Acting Deputy Committee Management Comment Date: 5 p.m. Eastern Time e-mail: [email protected] or visit the Officer. on Monday, February 28, 2011. Board’s Internet home page at: http:// [FR Doc. 2011–3985 Filed 2–22–11; 8:45 am] Any person desiring to intervene or to www.inlemcab.org. BILLING CODE 6450–01–P protest in any of the above proceedings must file in accordance with Rules 211 SUPPLEMENTARY INFORMATION: and 214 of the Commission’s Rules of Purpose of the Board: The purpose of DEPARTMENT OF ENERGY Practice and Procedure (18 CFR 385.211 the Board is to make recommendations and 385.214) on or before 5 p.m. Eastern to DOE–EM and site management in the Federal Energy Regulatory time on the specified comment date. It areas of environmental restoration, Commission is not necessary to separately intervene waste management, and related again in a subdocket related to a activities. Combined Notice of Filings compliance filing if you have previously Tentative Topics (agenda topics may Take notice that the Commission has intervened in the same docket. Protests change up to the day of the meeting; will be considered by the Commission please contact Robert L. Pence for the received the following Natural Gas Pipeline Rate and Refund Report filings: in determining the appropriate action to most current agenda): be taken, but will not serve to make Docket Numbers: RP11–1772–000. • Recent Public Involvement protestants parties to the proceeding. Applicants: MoGas Pipeline LLC. • Progress to Cleanup Anyone filing a motion to intervene or Description: MoGas Pipeline LLC • Five-Year Comprehensive protest must serve a copy of that submits tariff filing per 154.403(d)(2): Environmental Response, document on the Applicant. In reference Annual Fuel Adjustment to be effective Compensation, and Liability Act to filings initiating a new proceeding, 3/1/2011. (CERCLA) Review interventions or protests submitted on • Idaho’s 2015 Cleanup Vision Filed Date: 02/11/2011. Accession Number: 20110211–5120. or before the comment deadline need • Government Budget Cycle not be served on persons other than the • American Recovery and Reinvestment Comment Date: 5 p.m. Eastern Time on Friday, February 18, 2011. Applicant. Act Idaho Cleanup Project ‘‘Buy Back’’ The Commission encourages • Subsurface Disposal Area Progress Docket Numbers: RP11–1773–000. electronic submission of protests and • Interactive Radiation Demonstration Applicants: Northern Natural Gas interventions in lieu of paper, using the Integrated Waste Treatment Unit Company. FERC Online links at http:// System Testing Description: Northern Natural Gas www.ferc.gov. To facilitate electronic Public Participation: The EM SSAB, Company submits tariff filing per service, persons with Internet access Idaho National Laboratory, welcomes 154.204: 20110214 Flint Hills Non- who will eFile a document and/or be the attendance of the public at its conforming to be effective 3/17/2011. listed as a contact for an intervenor advisory committee meetings and will Filed Date: 02/14/2011. must create and validate an Accession Number: 20110214–5062. make every effort to accommodate eRegistration account using the Comment Date: 5 p.m. Eastern Time persons with physical disabilities or eRegistration link. Select the eFiling on Monday, February 28, 2011. special needs. If you require special link to log on and submit the accommodations due to a disability, Docket Numbers: RP11–1774–000. intervention or protests. please contact Robert L. Pence at least Applicants: Kern River Gas Persons unable to file electronically seven days in advance of the meeting at Transmission Company. should submit an original and 14 copies the phone number listed above. Written Description: Kern River Gas of the intervention or protest to the statements may be filed with the Board Transmission Company submits request Federal Energy Regulatory Commission, either before or after the meeting. for limited waiver of tariff general terms 888 First St., NE., Washington, DC Individuals who wish to make oral and conditions sections 10.6 and 12.7. 20426. presentations pertaining to agenda items Filed Date: 02/14/2011. The filings in the above proceedings should contact Robert L. Pence at the Accession Number: 20110214–5064. are accessible in the Commission’s address or telephone number listed Comment Date: 5 p.m. Eastern Time eLibrary system by clicking on the above. The request must be received five on Monday, February 28, 2011. appropriate link in the above list. They days prior to the meeting and reasonable Docket Numbers: RP11–1775–000. are also available for review in the provision will be made to include the Applicants: Columbia Gas Commission’s Public Reference Room in presentation in the agenda. The Deputy Transmission, LLC. Washington, DC. There is an Designated Federal Officer is Description: Columbia Gas eSubscription link on the Web site that empowered to conduct the meeting in a Transmission, LLC submits tariff filing enables subscribers to receive email fashion that will facilitate the orderly per 154.204: Contract Extension to be notification when a document is added conduct of business. Individuals effective 3/16/2011. to a subscribed dockets(s). For wishing to make public comments will Filed Date: 02/14/2011. assistance with any FERC Online be provided a maximum of five minutes Accession Number: 20110214–5111. service, please e-mail to present their comments. Comment Date: 5 p.m. Eastern Time [email protected]. or call Minutes: Minutes will be available by on Monday, February 28, 2011. (866) 208–3676 (toll free). For TTY, call writing or calling Robert L. Pence, Docket Numbers: RP11–1776–000. (202) 502–8659.

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Dated: February 15, 2011. Filed Date: 02/04/2011. DEPARTMENT OF ENERGY Nathaniel J. Davis, Sr., Accession Number: 20110204–5022. Deputy Secretary. Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory [FR Doc. 2011–4000 Filed 2–22–11; 8:45 am] on Wednesday, February 16, 2011. Commission BILLING CODE 6717–01–P Any person desiring to intervene or to Combined Notice of Filings protest in any of the above proceedings must file in accordance with Rules 211 Take notice that the Commission has DEPARTMENT OF ENERGY and 214 of the Commission’s Rules of received the following Natural Gas Practice and Procedure (18 CFR 385.211 Pipeline Rate and Refund Report filings: Federal Energy Regulatory and 385.214) on or before 5 p.m. Eastern Commission Docket Numbers: RP11–1765–000. time on the specified comment date. It Applicants: Leaf River Energy Center Combined Notice Of Filings No 1 is not necessary to separately intervene LLC. again in a subdocket related to a Description: Leaf River Energy Center Take notice that the Commission has compliance filing if you have previously LLC submits tariff filing per 154.203: received the following Natural Gas intervened in the same docket. Protests Filing of Initial FERC Gas Tariff in Pipeline Rate and Refund Report filings: will be considered by the Commission Compliance with Docket No CP08–8– Docket Numbers: RP11–1761–000. in determining the appropriate action to 000 to be effective 3/11/2011. Applicants: PostRock KPC Pipeline, be taken, but will not serve to make Filed Date: 02/09/2011. LLC. protestants parties to the proceeding. Accession Number: 20110209–5133. Description: PostRock KPC Pipeline, Anyone filing a motion to intervene or Comment Date: 5 p.m. Eastern Time LLC submits tariff filing per 154.313: protest must serve a copy of that on Tuesday, February 22, 2011. Lease Cost Adjustment to be effective 1/ document on the Applicant. In reference Docket Numbers: RP11–1766–000. 1/2011. to filings initiating a new proceeding, Applicants: Colorado Interstate Gas Filed Date: 02/04/2011. interventions or protests submitted on Accession Number: 20110204–5021. Company. or before the comment deadline need Description: Colorado Interstate Gas Comment Date: 5 p.m. Eastern Time not be served on persons other than the on Wednesday, February 16, 2011. Company submits tariff filing per Applicant. 154.204: Gas Quality Clean-up to be Docket Numbers: RP11–1762–000. The Commission encourages effective 3/14/2011. Applicants: Iroquois Gas electronic submission of protests and Transmission System, L.P. Filed Date: 02/09/2011. interventions in lieu of paper, using the Accession Number: 20110209–5182. Description: Iroquois Gas FERC Online links at http:// Transmission System, L.P. submits tariff Comment Date: 5 p.m. Eastern Time www.ferc.gov. To facilitate electronic on Tuesday, February 22, 2011. filing per 154.204: 02/04/11 Negotiated service, persons with Internet access Rates—BG Energy Merchants, LLC to be Docket Numbers: RP11–1767–000. who will eFile a document and/or be Applicants: Iroquois Gas effective 2/5/2011. listed as a contact for an intervenor Filed Date: 02/04/2011. Transmission System, L.P. Accession Number: 20110204–5023. must create and validate an Description: Iroquois Gas Comment Date: 5 p.m. Eastern Time eRegistration account using the Transmission System, L.P. submits tariff on Wednesday, February 16, 2011. eRegistration link. Select the eFiling filing per 154.204: 02/10/11 Negotiated link to log on and submit the Docket Numbers: RP11–1763–000. Rates—JP Morgan Ventures Energy Applicants: Gulf South Pipeline intervention or protests. Corporation to be effective 2/10/2011. Company, LP. Persons unable to file electronically Filed Date: 02/10/2011. Description: Gulf South Pipeline should submit an original and 14 copies Accession Number: 20110210–5065. Company, LP submits tariff filing per of the intervention or protest to the Comment Date: 5 p.m. Eastern Time 154.204: Add Bistineau Storage Federal Energy Regulatory Commission, on Tuesday, February 22, 2011. 888 First St., NE., Washington, DC Balancing SLN to FSS–B PF Service Docket Numbers: RP11–1768–000. 20426. Agreement to be effective 2/8/2011. Applicants: Wyoming Interstate Filed Date: 02/08/2011. The filings in the above proceedings Company, L.L.C. Accession Number: 20110208–5085. are accessible in the Commission’s Description: Wyoming Interstate Comment Date: 5 p.m. Eastern Time eLibrary system by clicking on the Company, L.L.C. submits tariff filing per on Tuesday, February 22, 2011. appropriate link in the above list. They 154.204: Negotiated Rate Update (BP) to Docket Numbers: RP11–1764–000. are also available for review in the be effective 3/14/2011. Applicants: Trailblazer Pipeline Commission’s Public Reference Room in Filed Date: 02/10/2011. Company LLC. Washington, DC. There is an Accession Number: 20110210–5123. Description: Trailblazer Pipeline eSubscription link on the Web site that Comment Date: 5 p.m. Eastern Time Company LLC submits tariff filing per enables subscribers to receive e-mail on Tuesday, February 22, 2011. 154.203: Order No. 714 Compliance notification when a document is added Filing—Baseline Tariff to be effective 3/ to a subscribed dockets(s). For Docket Numbers: RP11–1769–000. Applicants: Northern Border Pipeline 10/2011. assistance with any FERC Online Company. Filed Date: 02/08/2011. service, please e-mail Description: Northern Border Pipeline Accession Number: 20110208–5153. [email protected]. or call Company submits tariff filing per Comment Date: 5 p.m. Eastern Time (866) 208–3676 (toll free). For TTY, call 154.204: Allocation of Pipeline Capacity on Tuesday, February 22, 2011. (202) 502–8659. Docket Number: CP11–77–000. to be effective 3/14/2011. Applicants: PostRock KPC Pipeline, Dated: February 09, 2011. Filed Date: 02/10/2011. LLC. Nathaniel J. Davis, Sr., Accession Number: 20110210–5143. Description: Abbreviated application Deputy Secretary. Comment Date: 5 p.m. Eastern Time to partially abandon leased capacity of [FR Doc. 2011–4001 Filed 2–22–11; 8:45 am] on Tuesday, February 22, 2011. PostRock KPC Pipeline, LLC. BILLING CODE 6717–01–P Docket Numbers: RP11–1770–000.

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Applicants: Northwest Pipeline GP. of the intervention or protest to the Filed Date: 02/03/2011. Description: Northwest Pipeline GP Federal Energy Regulatory Commission, Accession Number: 20110203–5149. submits tariff filing per 154.204: JP 888 First St., NE., Washington, DC Comment Date: 5 p.m. Eastern Time Morgan Non-Conforming 2–10–2011 to 20426. on Tuesday, February 15, 2011. be effective 3/14/2011. The filings in the above proceedings Docket Numbers: RP10–1385–001. Filed Date: 02/10/2011. are accessible in the Commission’s Applicants: West Texas Gas, Inc. Accession Number: 20110210–5163. eLibrary system by clicking on the Description: West Texas Gas, Inc. Comment Date: 5 p.m. Eastern Time appropriate link in the above list. They submits tariff filing per 154.203: West on Tuesday, February 22, 2011. are also available for review in the Texas Gas Order No 714 Compliance Docket Numbers: RP11–1771–000. Commission’s Public Reference Room in Filing—Baseline Filing to be effective 9/ Applicants: Ozark Gas Transmission, Washington, DC. There is an 30/2010. L.L.C. eSubscription link on the Web site that Filed Date: 02/07/2011. Description: Ozark Gas Transmission, enables subscribers to receive e-mail Accession Number: 20110207–5108. L.L.C. submits tariff filing per 154.204: notification when a document is added Comment Date: 5 p.m. Eastern Time February 11, 2011 Clean-up Filing to be to a subscribed dockets(s). For on Tuesday, February 22, 2011. effective 8/13/2010. assistance with any FERC Online Docket Numbers: RP10–1395–001. Filed Date: 02/11/2011. service, please e-mail Applicants: Petal Gas Storage, L.L.C. Accession Number: 20110211–5028. [email protected]. or call Description: Petal Gas Storage, L.L.C. Comment Date: 5 p.m. Eastern Time (866) 208–3676 (toll free). For TTY, call submits tariff filing per 154.203: on Wednesday, February 23, 2011. (202) 502–8659. Compliance Baseline Tariff Filing to be Docket Numbers: RP11–1494–000. Dated: February 11, 2011. effective 11/2/2010. Applicants: Kinder Morgan Interstate Nathaniel J. Davis, Sr., Filed Date: 02/08/2011. Gas Transmission LLC. Deputy Secretary. Accession Number: 20110208–5071. Description: Motion of Kinder Morgan [FR Doc. 2011–4004 Filed 2–22–11; 8:45 am] Comment Date: 5 p.m. Eastern Time Interstate Gas Transmission LLC for BILLING CODE 6717–01–P on Tuesday, February 22, 2011. Adoption of Protective Order. Any person desiring to protest this Filed Date: 01/11/2011. filing must file in accordance with Rule Accession Number: 20110111–5104. DEPARTMENT OF ENERGY 211 of the Commission’s Rules of Comment Date: 5 p.m. Eastern Time Practice and Procedure (18 CFR on Wednesday, February 16, 2011. Federal Energy Regulatory 385.211). Protests to this filing will be Any person desiring to intervene or to Commission considered by the Commission in protest in any of the above proceedings determining the appropriate action to be must file in accordance with Rules 211 Combined Notice of Filings No. 2 taken, but will not serve to make and 214 of the Commission’s Rules of Take notice that the Commission has protestants parties to the proceeding. Practice and Procedure (18 CFR 385.211 received the following Natural Gas Such protests must be filed on or before and 385.214) on or before 5 p.m. Eastern Pipeline Rate and Refund Report filings: 5 p.m. Eastern time on the specified time on the specified comment date. It Docket Numbers: RP11–1632–001. comment date. Anyone filing a protest is not necessary to separately intervene must serve a copy of that document on again in a subdocket related to a Applicants: Texas Eastern Transmission, LP. all the parties to the proceeding. compliance filing if you have previously The Commission encourages intervened in the same docket. Protests Description: Texas Eastern Transmission, LP submits tariff filing electronic submission of protests in lieu will be considered by the Commission of paper using the ‘‘eFiling’’ link at in determining the appropriate action to per 154.203: Hourly Flow Compliance Filing to be effective 2/1/2011. http://www.ferc.gov. Persons unable to be taken, but will not serve to make file electronically should submit an protestants parties to the proceeding. Filed Date: 02/03/2011. Accession Number: 20110203–5084. original and 14 copies of the protest to Anyone filing a motion to intervene or the Federal Energy Regulatory protest must serve a copy of that Comment Date: 5 p.m. Eastern Time on Tuesday, February 15, 2011. Commission, 888 First Street, NE., document on the Applicant. In reference Washington, DC 20426. Docket Numbers: RP11–1703–001. to filings initiating a new proceeding, This filing is accessible on-line at Applicants: CenterPoint Energy— interventions or protests submitted on http://www.ferc.gov, using the Mississippi River Transmission, LLC. or before the comment deadline need ‘‘eLibrary’’ link and is available for Description: CenterPoint Energy— not be served on persons other than the review in the Commission’s Public Mississippi River Transmission, LLC Applicant. Reference Room in Washington, DC. submits tariff filing per 154.205(b): The Commission encourages There is an ‘‘eSubscription’’ link on the Amend MRT LLC Name Change to be electronic submission of protests and Web site that enables subscribers to effective 1/1/2011. interventions in lieu of paper, using the receive e-mail notification when a Filed Date: 02/03/2011. FERC Online links at http:// document is added to a subscribed Accession Number: 20110203–5033. www.ferc.gov. To facilitate electronic docket(s). For assistance with any FERC Comment Date: 5 p.m. Eastern Time service, persons with Internet access Online service, please e-mail on Tuesday, February 15, 2011. who will eFile a document and/or be [email protected], or call listed as a contact for an intervenor Docket Numbers: RP11–1707–001. (866) 208–3676 (toll free). For TTY, call must create and validate an Applicants: CenterPoint Energy Gas (202) 502–8659. eRegistration account using the Transmission Company, LLC. eRegistration link. Select the eFiling Description: CenterPoint Energy Gas Dated: February 9, 2011. link to log on and submit the Transmission Company, LLC submits Nathaniel J. Davis, Sr., intervention or protests. tariff filing per 154.205(b): CEGT LLC Deputy Secretary. Persons unable to file electronically Amended Name Change Filing to be [FR Doc. 2011–4002 Filed 2–22–11; 8:45 am] should submit an original and 14 copies effective 1/1/2011. BILLING CODE 6717–01–P

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ENVIRONMENTAL PROTECTION means EPA will not know your identity What information is EPA particularly AGENCY or contact information unless you interested in? provide it in the body of your comment. [EPA–HQ–RCRA–2010–0832, FRL–9269–6] Pursuant to section 3506(c)(2)(A) of If you send an e-mail comment directly the PRA, EPA specifically solicits Agency Information Collection to EPA without going through http:// comments and information to enable it Activities; Proposed Collection; www.regulations.gov your e-mail to: Comment Request; Reporting and address will be automatically captured (i) Evaluate whether the proposed Recordkeeping Requirements Under and included as part of the comment collection of information is necessary EPA’s WasteWise Program that is placed in the public docket and for the proper performance of the made available on the Internet. If you functions of the Agency, including AGENCY: Environmental Protection submit an electronic comment, EPA whether the information will have Agency. recommends that you include your practical utility; ACTION: Notice. name and other contact information in (ii) Evaluate the accuracy of the the body of your comment and with any Agency’s estimate of the burden of the SUMMARY: In compliance with the disk or CD–ROM you submit. If EPA proposed collection of information, Paperwork Reduction Act (PRA) (44 including the validity of the U.S.C. 3501 et seq.), this document cannot read your comment due to technical difficulties and cannot contact methodology and assumptions used; announces that EPA is planning to (iii) Enhance the quality, utility, and submit a request to renew an existing you for clarification, EPA may not be able to consider your comment. clarity of the information to be approved Information Collection collected; and Electronic files should avoid the use of Request (ICR) to the Office of (iv) Minimize the burden of the special characters, any form of Management and Budget (OMB). This collection of information on those who ICR is scheduled to expire on June 30, encryption, and be free of any defects or are to respond, including through the 2011. Before submitting the ICR to OMB viruses. For additional information use of appropriate automated electronic, for review and approval, EPA is about EPA’s public docket visit the EPA mechanical, or other technological soliciting comments on specific aspects Docket Center homepage at http:// collection techniques or other forms of of the proposed information collection www.epa.gov/epahome/dockets.htm. information technology, e.g., permitting as described below. FOR FURTHER INFORMATION CONTACT: electronic submission of responses. In DATES: Comments must be submitted on Marian Robinson, Office of Resources & particular, EPA is requesting comments or before April 25, 2011. Conservation Recovery, 5306P, from very small businesses (those that ADDRESSES: Submit your comments, Environmental Protection Agency, 1200 employ less than 25) on examples of identified by Docket ID No. EPA–HQ– Pennsylvania Ave., NW., Washington, specific additional efforts that EPA RCRA–2010–0832, by one of the DC 20460; telephone number: (703) could make to reduce the paperwork following methods: 308–8666; fax number: (703) 308–8686; burden for very small businesses • http://www.regulations.gov: Follow e-mail address: affected by this collection. the on-line instructions for submitting [email protected]. What should I consider when I prepare comments. my comments for EPA? • E-mail: [email protected]. SUPPLEMENTARY INFORMATION: • Fax: 202–566–9744. You may find the following How can I access the docket and/or • Mail: RCRA Docket (28221T), U.S. suggestions helpful for preparing your submit comments? Environmental Protection Agency, 1200 comments: 1. Explain your views as clearly as Pennsylvania Avenue, NW., EPA has established a public docket Washington, DC 20460. possible and provide specific examples. for this ICR under Docket ID No. EPA– 2. Describe any assumptions that you • Hand Delivery: 1301 Constitution HQ–RCRA–2010–0832, which is used. Ave., NW., Room 3334, Washington, DC available for online viewing at http:// 3. Provide copies of any technical 20460. Such deliveries are only www.regulations.gov, or in person information and/or data you used that accepted during the Docket’s normal viewing at the RCRA Docket in the EPA support your views. hours of operation, and special Docket Center (EPA/DC), EPA West, 4. If you estimate potential burden or arrangements should be made for Room 3334, 1301 Constitution Ave., costs, explain how you arrived at the deliveries of boxed information. NW., Washington, DC. The EPA/DC estimate that you provide. Instructions: Direct your comments to Public Reading Room is open from 8 5. Offer alternative ways to improve Docket ID No. EPA–HQ–RCRA–2010– a.m. to 4:30 p.m., Monday through the collection activity. 0832. EPA’s policy is that all comments Friday, excluding legal holidays. The 6. Make sure to submit your received will be included in the public telephone number for the Reading Room comments by the deadline identified docket without change and may be is (202) 566–1744, and the telephone under DATES. made available online at http:// number for RCRA Docket is (202) 566– 7. To ensure proper receipt by EPA, www.regulations.gov, including any 0270. be sure to identify the docket ID number personal information provided, unless assigned to this action in the subject the comment includes information Use http://www.regulations.gov to line on the first page of your response. claimed to be Confidential Business obtain a copy of the draft collection of You may also provide the name, date, Information (CBI) or other information information, submit or view public and Federal Register citation. whose disclosure is restricted by statute. comments, access the index listing of Do not submit information that you the contents of the docket, and to access What information collection activity or consider to be CBI or otherwise those documents in the public docket ICR does this apply to? protected through http:// that are available electronically. Once in Affected entities: Entities potentially www.regulations.gov or e-mail. The the system, select ‘‘search,’’ then key in affected by this action are businesses, http://www.regulations.gov Web site is the docket ID number identified in this not-for-profit, and State, Local, or Tribal an ‘‘anonymous access’’ system, which document. governments.

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Title: Reporting and Recordkeeping waste prevented and recycled, amount Federal agency. This includes the time Requirements Under EPA’s WasteWise of recycled-content materials purchased, needed to review instructions; develop, Program and (where appropriate) the amount of acquire, install, and utilize technology ICR numbers: EPA ICR No. 1698.08, recovered materials used in the and systems for the purposes of OMB Control No. 2050–0139 manufacture of new products. They also collecting, validating, and verifying ICR status: This ICR is currently provide WasteWise with information on information, processing and scheduled to expire on June 30, 2011. total waste prevention revenue, total maintaining information, and disclosing An Agency may not conduct or sponsor, recycling revenue, total avoided and providing information; adjust the and a person is not required to respond purchasing costs due to waste existing ways to comply with any to, a collection of information, unless it prevention, and total avoided disposal previously applicable instructions and displays a currently valid OMB control costs due to recycling and waste requirements which have subsequently number. The OMB control numbers for prevention. Additionally, they are EPA’s regulations in title 40 of the CFR, encouraged to submit new waste changed; train personnel to be able to after appearing in the Federal Register reduction goals. respond to a collection of information; when approved, are listed in 40 CFR Endorsers, which are typically trade search data sources; complete and part 9, are displayed either by associations or State/local governments, review the collection of information; publication in the Federal Register or submit an Endorser Registration Form and transmit or otherwise disclose the by other appropriate means, such as on upon registering for the program. (This information. the related collection instrument or is an on-line form that is completed and The ICR provides a detailed form, if applicable. The display of OMB is submitted electronically.) The explanation of the Agency’s estimate, control numbers in certain EPA Endorser Registration Form identifies which is only briefly summarized here: regulations is consolidated in 40 CFR the organization, the principal contact, part 9. and the activities to which the Endorser Estimated total number of potential Abstract: EPA’s voluntary WasteWise commits. EPA plans to expand the respondents: 1,875. program encourages businesses and information requested of Endorsers by Frequency of response: Annual. other organizations to reduce solid requiring them to submit a summary of Estimated total average number of waste through waste prevention, their endorser activities annually. All responses for each respondent: 1. recycling, and the purchase or registration and reporting information manufacture of recycled-content will be submitted electronically using Estimated total annual burden hours: products. WasteWise participants the existing on-line, Web-based data 70,950. include partners, who commit to management and reporting system. Estimated total annual costs: $0. This implementing waste reduction activities EPA’s WasteWise program uses the includes an estimated burden cost of $0 tailored to their specific needs, and submitted information to (1) identify and an estimated cost of $0 for capital endorsers who promote WasteWise and and recognize outstanding waste investment or maintenance and recruit organizations to join the reduction achievements by individual operational costs. program. organizations, (2) compile results that WasteWise requires partners to indicate overall accomplishments of What is the next step in the process for register for membership in the program. WasteWise members, (3) identify cost- this ICR? Previously, WasteWise used paper effective waste reduction strategies to forms that we estimate took 40 hours for share with other organizations, (4) EPA will consider the comments partners and 10 hours for endorsers to identify topics on which to develop received and amend the ICR as complete. In 2009, WasteWise technical assistance materials and other appropriate. The final ICR package will implemented a Web-based data information, and (5) further encourage then be submitted to OMB for review management and reporting system for the growth of industry-specific and approval pursuant to 5 CFR the collection and reporting of data. sustainable practices. 1320.12. At that time, EPA will issue Under the new Web-based system, Burden Statement: The respondent another Federal Register notice partners and endorsers enter their data, burden for this collection is estimated to pursuant to 5 CFR 1320.5(a)(1)(iv) to on-line. average 4 hours per response for the announce the submission of the ICR to The Partner Registration Form Partner Registration Form, 48 hours per OMB and the opportunity to submit identifies an organization and its response for the Annual Assessment additional comments to OMB. If you facilities registering to participate in Form, 4 hours per response for the have any questions about this ICR or the WasteWise, and requires the signature Endorser Registration Form, and 3 hours approval process, please contact the of a senior official that can commit the per response for the Endorser Annual technical person listed under FOR organization to the program. (This form Assessment Form. This results in an FURTHER INFORMATION CONTACT. completed on-line and is submitted estimated annual partner respondent electronically.) Within two months of burden of 51 hours for new partners, 48 Dated: January 31, 2011. registering, each partner is required to hours for established partners, 7 hours Suzanne Rudzinski, submit baseline data on existing waste for new endorsers, and 3 hours for Director, Office of Resource Conservation and reduction programs to EPA via an established endorsers. The estimated Recovery. Annual Assessment Form. (This is an number of respondents is 1,051 in Year [FR Doc. 2011–3995 Filed 2–22–11; 8:45 am] on-line form that is completed and 1; 1,138 in Year 2; and 1,225 in Year 3. submitted electronically.) Partners are Estimated total annual burden on all BILLING CODE 6560–50–P also encouraged to set waste reduction respondents is 28,899 hours in Year 1; goals for the upcoming year. On an 32,572 hours in Year 2; and 35,773 annual basis, partners are required to hours in Year 3. report, via the Annual Assessment Burden means the total time, effort, or Form, on the accomplishments of their financial resources expended by persons waste prevention and recycling to generate, maintain, retain, or disclose activities. Partners report the amount of or provide information to or for a

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ENVIRONMENTAL PROTECTION viewing at the Air and Radiation Docket (IUVP) for light-duty vehicles. They AGENCY in the EPA Docket Center (EPA/DC), derive from the Clean Air Act’s charge EPA West, Room 3334, 1301 that EPA insure that motor vehicles [EPA–HQ–OAR–2010–0690; FRL–9270–3] Constitution Ave., NW., Washington, comply with emissions requirements Agency Information Collection DC. The EPA/DC Public Reading Room throughout their useful lives. The Activities; Submission to OMB for is open from 8:30 a.m. to 4:30 p.m., primary purpose of the program is Review and Approval; Comment Monday through Friday, excluding legal information gathering. Nevertheless, Request; EPA’s Light-Duty In-Use holidays. The telephone number for the EPA can require a recall if it receives Vehicle and Engine Testing Program Reading Room is 202–566–1744, and the information, from whatever source, (Renewal) telephone number for the Air and including in-use testing, that a Radiation Docket is 202–566–1742. ‘‘substantial number’’ of any class or AGENCY: Environmental Protection Use EPA’s electronic docket and category of vehicles or engines, although Agency (EPA). comment system at http:// properly maintained and used, do not ACTION: Notice. www.regulations.gov, to submit or view conform to the emission standards, public comments, access the index when in actual use throughout their SUMMARY: In compliance with the listing of the contents of the docket, and useful life. Paperwork Reduction Act (PRA) (44 to access those documents in the docket The program can be broken down into U.S.C. 3501 et seq.), this document that are available electronically. Once in three closely-related headings. The first announces that an Information the system, select ‘‘docket search,’’ then is a surveillance program that selects Collection Request (ICR) has been key in the docket ID number identified approximately 50 classes of passenger forwarded to the Office of Management above. Please note that EPA’s policy is cars and light trucks for in-use testing, and Budget (OMB) for review and that public comments, whether at EPA’s testing facility, totaling approval. This is a request to renew an submitted electronically or in paper, approximately 150 vehicles (three in existing approved collection. The ICR, will be made available for public each class on average). In rare cases which is abstracted below, describes the viewing at http://www.regulations.gov surveillance testing may be followed by nature of the information collection and as EPA receives them and without compliance testing (only four such its estimated burden and cost. change, unless the comment contains classes in the last five years). The DATES: Additional comments may be copyrighted material, confidential purpose of a compliance phase is to submitted on or before March 25, 2011. business information (CBI), or other develop additional information related ADDRESSES: Submit your comments, information whose public disclosure is to test failures observed in a class referencing Docket ID No. EPA–HQ– restricted by statute. For further during surveillance testing. The second OAR–2010–0690, to (1) EPA online information about the electronic docket, heading is testing of a subset of using www.regulations.gov (our go to http://www.regulations.gov. approximately 35 vehicles from the preferred method), or by mail to: EPA Title: EPA’s In-Use Vehicle and surveillance recruitment for operation of Docket Center, Environmental Engine Testing Programs (Renewal) on-board diagnostics (OBD) systems. Protection Agency, Air and Radiation ICR numbers: EPA ICR No. 0222.09, The third category is special Docket, Mailcode 28221T, 1200 OMB Control No. 2060–0086. investigations involving testing of ICR Status: This ICR is scheduled to Pennsylvania Ave., NW., Washington, vehicles to address specific issues. The expire on February 28, 2010. Under DC 20460, and (2) OMB by mail to: number of vehicles procured under this OMB regulations, the Agency may Office of Information and Regulatory category varies widely from year to year, continue to conduct or sponsor the Affairs, Office of Management and but this request asks for approval of the collection of information while this Budget (OMB), Attention: Desk Officer information burden corresponding to 25 submission is pending at OMB. An such vehicles per year for the next three for EPA, 725 17th Street, NW., Agency may not conduct or sponsor, Washington, DC 20503. years. and a person is not required to respond Participation in the light-duty FOR FURTHER INFORMATION CONTACT: to, a collection of information, unless it surveys, as well as the vehicle testing, Lynn Sohacki, Compliance and displays a currently valid OMB control is strictly voluntary. A group of 25 to 50 Innovative Strategies Division, Office of number. The OMB control numbers for potential participants is identified from Transportation and Air Quality, EPA’s regulations in title 40 of the CFR, state vehicle registration records. They Environmental Protection Agency, 2000 after appearing in the Federal Register are asked to return a postcard indicating Traverwood, Ann Arbor, Michigan when approved, are listed in 40 CFR their willingness to participate and if so, 48105; telephone number: 734–214– part 9, are displayed either by to verify some limited vehicle 4851; fax number: 734–214–4869; e- publication in the Federal Register or information. Three of those who return mail address: [email protected]. by other appropriate means, such as on the card are called and asked about a SUPPLEMENTARY INFORMATION: EPA has the related collection instrument or half dozen questions concerning vehicle submitted the following ICR to OMB for form, if applicable. The display of OMB condition, and operation and review and approval according to the control numbers in certain EPA maintenance. Additional groups of procedures prescribed in 5 CFR 1320.12. regulations is consolidated in 40 CFR potential participants may be contacted On August 25, 2010 (75 FR 52326), EPA part 9. until a sufficient number of vehicles has sought comments on this ICR pursuant Abstract: EPA has an ongoing been obtained. Owners verify the survey to 5 CFR 1320.8(d). EPA received no program to evaluate the emission information when they deliver their comments. Any additional comments on performance of in-use light-duty vehicles to EPA, voluntarily provide this ICR should be submitted to EPA (passenger car and light truck) motor maintenance records for copying, and and OMB within 30 days of this notice. vehicles. This program operates in receive a loaner car and/or a cash EPA has established a public docket conjunction with testing of prototype incentive. for this ICR under Docket ID No. EPA– vehicles prior to use (manufacturer and Burden Statement: The annual public HQ–OAR–2010–0690, which is EPA confirmatory testing for reporting and recordkeeping burden for available for online viewing at http:// certification) and the mandatory this collection of information is www.regulations.gov, or in person manufacturer’s in-use testing program estimated to average less than one hour

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per response. Burden means the total 3501 et seq.), this document announces www.regulations.gov, to submit or view time, effort, or financial resources that an Information Collection Request public comments, access the index expended by persons to generate, (ICR) has been forwarded to the Office listing of the contents of the docket, and maintain, retain, or disclose or provide of Management and Budget (OMB) for to access those documents in the docket information to or for a Federal agency. review and approval. This is a request that are available electronically. Once in This includes the time needed to review to renew an existing approved the system, select ‘‘docket search,’’ then instructions; develop, acquire, install, collection. The ICR which is abstracted key in the docket ID number identified and utilize technology and systems for below describes the nature of the above. Please note that EPA’s policy is the purposes of collecting, validating, collection and the estimated burden and that public comments, whether and verifying information, processing cost. submitted electronically or in paper, and maintaining information, and DATES: Additional comments may be will be made available for public disclosing and providing information; submitted on or before March 25, 2011. viewing at http://www.regulations.gov, adjust the existing ways to comply with ADDRESSES: Submit your comments, as EPA receives them and without any previously applicable instructions referencing docket ID number EPA–HQ– change, unless the comment contains and requirements which have OAR–2007–0563, to (1) EPA online copyrighted material, confidential subsequently changed; train personnel using http://www.regulations.gov (our business information (CBI), or other to be able to respond to a collection of preferred method), or by e-mail to a- information whose public disclosure is information; search data sources; [email protected], or by mail to: restricted by statute. For further complete and review the collection of EPA Docket Center, Environmental information about the electronic docket, information; and transmit or otherwise Protection Agency, Air and Radiation go to http://www.regulations.gov. disclose the information. Docket, Mail Code 28221T, 1200 Title: National Volatile Organic Respondents/Affected Entities: Pennsylvania Avenue, NW., Compound Emission Standards for Individual and fleet owners of motor Washington, DC 20460, and (2) OMB at: Consumer Products (Renewal). vehicles and engines. Office of Information and Regulatory ICR Numbers: EPA ICR Number Estimated Number of Respondents: Affairs, Office of Management and 1764.05, OMB Control Number 2060– Approximately 4,285 owners/lessees Budget, Attention: Desk Officer for EPA, 0348. ICR Status: This ICR is scheduled to receive EPA’s solicitations to participate 725 17th Street, NW., Washington, DC expire on February 28, 2011. Under and approximately 164 do participate. 20503. Frequency of Response: On Occasion. OMB regulations, the Agency may Estimated Total Annual Hour Burden: FOR FURTHER INFORMATION CONTACT: Mr. continue to conduct or sponsor the 521. Michael K. Ciolek, U.S. Environmental collection of information while this Estimated Total Annual Cost: Protection Agency, Office of Air Quality submission is pending at OMB. An $11,295, including $0 annualized Planning and Standards, Sector Policies Agency may not conduct or sponsor, capital or O&M costs. and Programs Division, Natural and a person is not required to respond Changes in the Estimates: There is a Resources and Commerce Group (D243– to, a collection of information unless it decrease of 90 responses and 98 hours 05), Research Triangle Park, North displays a currently valid OMB control in the total estimated respondent Carolina 27711; telephone number: number. The OMB control numbers for burden compared with that identified in (919) 541–4921; fax number: (919) 541– EPA’s regulations in title 40 of the CFR, the ICR currently approved by OMB. 1039; e-mail address: after appearing in the Federal Register This decrease is entirely due to removal [email protected]. when approved, are listed in 40 CFR of the heavy-duty and non-road portions SUPPLEMENTARY INFORMATION: EPA has part 9, and displayed either by of this ICR, which will henceforth be submitted the following ICR to OMB for publication in the Federal Register or covered under a different information review and approval according to the by other appropriate means, such as on collection request (OMB Control procedures prescribed in 5 CFR 1320.12. the related collection instrument or Number 2060–0287). On November 9, 2010 (75 FR 68783), form, if applicable. The display of OMB Dated: February 16, 2011. EPA sought comments on this ICR control numbers in certain EPA John Moses, pursuant to 5 CFR 1320.8(d). EPA regulations is consolidated in 40 CFR Director, Collection Strategies Division. received no comments. Any additional part 9. Abstract: The information collection [FR Doc. 2011–4006 Filed 2–22–11; 8:45 am] comments on this ICR should be submitted to EPA and OMB within 30 includes initial reports and periodic BILLING CODE 6560–50–P days of this notice. recordkeeping necessary for EPA to EPA has established a public docket ensure compliance with Federal ENVIRONMENTAL PROTECTION for this ICR under docket ID number standards for volatile organic AGENCY EPA–HQ–OAR–2007–0563, which is compounds in consumer products. available for public viewing online at Respondents are manufacturers, [EPA–HQ–OAR–2007–0563; FRL–9270–4] http://www.regulations.gov, in person distributors, and importers of consumer viewing at the Air Docket in the EPA products. Responses to the collection Agency Information Collection Docket Center (EPA/DC), EPA West, are mandatory under 40 CFR part 59, Activities; Submission to OMB for Room 3334, 1301 Constitution Avenue, subpart C, National Volatile Organic Review and Approval; Comment NW., Washington, DC. The EPA Docket Compound Emission Standards for Request; National Volatile Organic Center Public Reading Room is open Consumer Products. All information Compound Emission Standards for from 8:30 a.m. to 4:30 p.m., Monday submitted to the EPA for which a claim Consumer Products (Renewal) through Friday, excluding legal of confidentiality is made will be AGENCY: Environmental Protection holidays. The telephone number for the safeguarded according to the Agency Agency (EPA). Reading Room is (202) 566–1744, and policies set forth in 40 CFR part 2, ACTION: Notice. the telephone number for the Air Docket subpart B, Confidentiality of Business is (202) 566–1742. Information. SUMMARY: In compliance with the Use EPA’s electronic docket and Burden Statement: The annual public Paperwork Reduction Act (44 U.S.C. comment system at http:// reporting and recordkeeping burden for

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this collection of information is period of time from 1990 through 2009 ENVIRONMENTAL PROTECTION estimated to average 40 hours per are summarized and presented by AGENCY response. Burden means the total time, source category and sector. The [EPA–HQ–OPP–2011–0005; FRL–8861–9] effort, or financial resources expended inventory contains estimates of carbon by persons to generate, maintain, retain, dioxide (CO2), methane (CH4), nitrous Pesticide Products; Registration or disclose or provide information to or oxide (N2O), hydrofluorocarbons (HFC), Applications for a Federal agency. This includes the perfluorocarbons (PFC), and sulfur AGENCY: Environmental Protection time needed to review instructions; hexafluoride (SF6) emissions. The develop, acquire, install, and utilize inventory also includes estimates of Agency (EPA). technology and systems for the purposes carbon fluxes in U.S. agricultural and ACTION: Notice. of collecting, validating, and verifying forest lands. The technical approach SUMMARY: This notice announces receipt information, processing and used in this report to estimate emissions maintaining information, and disclosing of applications to register new uses for and sinks for greenhouse gases is and providing information; adjust the pesticide products containing currently consistent with the methodologies existing ways to comply with any registered active ingredients, pursuant previously applicable instructions and recommended by the Intergovernmental to the provisions of section 3(c) of the requirements which have subsequently Panel on Climate Change (IPCC), and Federal Insecticide, Fungicide, and changed; train personnel to be able to reported in a format consistent with the Rodenticide Act (FIFRA), as amended. respond to a collection of information; United Nations Framework Convention EPA is publishing this notice of such search data sources; complete and on Climate Change (UNFCCC) reporting applications, pursuant to section 3(c)(4) review the collection of information; guidelines. The Inventory of U.S. of FIFRA. and transmit or otherwise disclose the Greenhouse Gas Emissions and Sinks: DATES: Comments must be received on information. 1990–2009 is the latest in a series of or before March 25, 2011. Respondents/Affected Entities: annual U.S. submissions to the ADDRESSES: Submit your comments, Manufacturers and importers of Secretariat of the UNFCCC. identified by docket identification (ID) consumer products. DATES: To ensure your comments are number specified within the registration Estimated Number of Respondents: considered for the final version of the application summaries in Unit II., by 732. document, please submit your one of the following methods: Frequency of Response: On occasion. • comments within 30 days of the Federal eRulemaking Portal: http:// Estimated Total Annual Hour Burden: www.regulations.gov. Follow the on-line 29,613. appearance of this notice. However, comments received after that date will instructions for submitting comments. Estimated Total Annual Cost: • Mail: Office of Pesticide Programs still be welcomed and be considered for $1,364,069 in labor costs; there are no (OPP) Regulatory Public Docket (7502P), the next edition of this report. capital/startup costs or O&M costs Environmental Protection Agency, 1200 associated with this ICR. ADDRESSES: Comments should be Pennsylvania Ave., NW., Washington, Changes in the Estimates: There is no submitted to Mr. Leif Hockstad at: DC 20460–0001. change in the labor hours or capital and Environmental Protection Agency, • Delivery: OPP Regulatory Public O&M costs to the respondents in this Climate Change Division (6207J), 1200 Docket (7502P), Environmental ICR compared to the previous ICR Pennsylvania Ave., NW., Washington, Protection Agency, Rm. S–4400, One because the regulations have not DC 20460, Fax: (202) 343–2359. You are Potomac Yard (South Bldg.), 2777 S. changed over the past three years and welcome and encouraged to send an Crystal Dr., Arlington, VA. Deliveries are not anticipated to change over the are only accepted during the Docket next three years. However, the change in email with your comments to [email protected]. Facility’s normal hours of operation labor costs for industry and EPA is due (8:30 a.m. to 4 p.m., Monday through to the use of more current labor rates. FOR FURTHER INFORMATION CONTACT: Mr. Friday, excluding legal holidays). Dated: February 16. 2011. Leif Hockstad, Environmental Special arrangements should be made John Moses, Protection Agency, Office of Air and for deliveries of boxed information. The Director, Collection Strategies Division. Radiation, Office of Atmospheric Docket Facility telephone number is [FR Doc. 2011–4005 Filed 2–22–11; 8:45 am] Programs, Climate Change Division, (703) 305–5805. Instructions: Direct your comments to BILLING CODE 6560–50–P (202) 343–9432, [email protected]. docket ID number specified for the SUPPLEMENTARY INFORMATION: The draft pesticide of interest as shown in the ENVIRONMENTAL PROTECTION report can be obtained by visiting the registration application summaries in AGENCY U.S. EPA’s Climate Change Site at: Unit II. EPA’s policy is that all http://www.epa.gov/climatechange/ comments received will be included in [FRL–9270–1] emissions/usinventoryreport.html. the docket without change and may be made available on-line at http:// Inventory of U.S. Greenhouse Gas Dated: February 16, 2011. www.regulations.gov, including any Emissions and Sinks: 1990–2009 Gina McCarthy, personal information provided, unless AGENCY: Environmental Protection Assistant Administrator, Office of Air and the comment includes information Agency (EPA). Radiation. claimed to be Confidential Business [FR Doc. 2011–3999 Filed 2–22–11; 8:45 am] ACTION: Notice of document availability Information (CBI) or other information and request for comments. BILLING CODE 6560–50–P whose disclosure is restricted by statute. Do not submit information that you SUMMARY: The Draft Inventory of U.S. consider to be CBI or otherwise Greenhouse Gas Emissions and Sinks: protected through regulations.gov or e- 1990–2009 is available for public mail. The regulations.gov website is an review. Annual U.S. emissions for the ‘‘anonymous access’’ system, which

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means EPA will not know your identity affected entities may include, but are v. If you estimate potential costs or or contact information unless you not limited to: burdens, explain how you arrived at provide it in the body of your comment. • Crop production (NAICS code 111). your estimate in sufficient detail to If you send an e-mail comment directly • Animal production (NAICS code allow for it to be reproduced. to EPA without going through 112). vi. Provide specific examples to regulations.gov, your e-mail address • Food manufacturing (NAICS code illustrate your concerns and suggest will be automatically captured and 311). alternatives. included as part of the comment that is • Pesticide manufacturing (NAICS vii. Explain your views as clearly as placed in the docket and made available code 32532). possible, avoiding the use of profanity on the Internet. If you submit an This listing is not intended to be or personal threats. electronic comment, EPA recommends exhaustive, but rather provides a guide viii. Make sure to submit your that you include your name and other for readers regarding entities likely to be comments by the comment period contact information in the body of your affected by this action. Other types of deadline identified. entities not listed in this unit could also comment and with any disk or CD–ROM II. Registration Applications you submit. If EPA cannot read your be affected. The North American comment due to technical difficulties Industrial Classification System EPA received applications as follows and cannot contact you for clarification, (NAICS) codes have been provided to to register pesticide products containing EPA may not be able to consider your assist you and others in determining currently registered active ingredients comment. Electronic files should avoid whether this action might apply to pursuant to the provisions of section the use of special characters, any form certain entities. If you have any 3(c) of FIFRA, and is publishing this of encryption, and be free of any defects questions regarding the applicability of notice of such applications pursuant to or viruses. this action to a particular entity, consult section 3(c)(4) of FIFRA. Notice of Docket: All documents in the docket the person listed under FOR FURTHER receipt of these applications does not are listed in the docket index available INFORMATION CONTACT. imply a decision by the Agency on the at http://www.regulations.gov. Although applications. B. What should I consider as I prepare listed in the index, some information is 1. Registration Number/File Symbol: my comments for EPA? not publicly available, e.g., CBI or other 279–3124, 279–3125, 279–3126. Docket information whose disclosure is 1. Submitting CBI. Do not submit this Number: EPA–HQ–OPP–2010–0472. restricted by statute. Certain other information to EPA through Company name and address: FMC material, such as copyrighted material, regulations.gov or e-mail. Clearly mark Corporation, 1735 Market St., is not placed on the Internet and will be the part or all of the information that Philadelphia, PA 19103. Active publicly available only in hard copy you claim to be CBI. For CBI ingredient: Zeta-Cypermethrin. form. Publicly available docket information in a disk or CD–ROM that Proposed Uses: Avocado, black sapote, materials are available either in the you mail to EPA, mark the outside of the canistel, mamey sapote, mango, papaya, electronic docket at http:// disk or CD–ROM as CBI and then sapodilla, star apple. Contact: Linda www.regulations.gov, or, if only identify electronically within the disk or DeLuise, Registration Division, (703) available in hard copy, at the OPP CD–ROM the specific information that 305–5428, [email protected]. Regulatory Public Docket in Rm. S– is claimed as CBI. In addition to one 2. Registration Number/File Symbol: 4400, One Potomac Yard (South Bldg.), complete version of the comment that 707–GEN, 707–GRO. Docket Number: 2777 S. Crystal Dr., Arlington, VA. The includes information claimed as CBI, a EPA–HQ–OPP–2010–1037. Company hours of operation of this Docket copy of the comment that does not name and address: Rohm and Hass Facility are from 8:30 a.m. to 4 p.m., contain the information claimed as CBI Company, 100 Independence Mall West, Monday through Friday, excluding legal must be submitted for inclusion in the Philadelphia, PA 19106. Active holidays. The Docket Facility telephone public docket. Information so marked ingredient: 2-Methyl-1, 2- number is (703) 305–5805. will not be disclosed except in benzisothiazol-3 (2H)-one. Proposed Uses: For use in ATD emulsion FOR FURTHER INFORMATION CONTACT: A accordance with procedures set forth in products, paints, building materials, contact person is listed at the end of 40 CFR part 2. adhesives and sealants, ink, textiles, each registration application summary 2. Tips for preparing your comments. paper coating, functional chemicals, and may be contacted by telephone or When submitting comments, remember household and I&I, oil process water e-mail. The mailing address for each to: and recovery system, metalworking contact person listed is: Registration i. Identify the document by docket ID fluids. Contact: Abigail Downs, Division (7505P), Office of Pesticide number and other identifying Antimicrobials Division, (703) 305– Programs, Environmental Protection information (subject heading, Federal 5259, [email protected]. Agency, 1200 Pennsylvania Ave., NW., Register date and page number). If you 3. Registration Number/File Symbol: Washington, DC 20460–0001 and are commenting in a docket that 1677–EGU. Docket Number: EPA–HQ– Biopesticides and Pollution Prevention addresses multiple products, please OPP–2010–1035. Company name and Division (7511P), Office of Pesticide indicate to which registration number(s) address: ECOLAB Inc., 370 North Programs, Environmental Protection your comment applies. ii. Follow directions. The Agency may Wabasha St., St. Paul, MN 55102. Active Agency, 1200 Pennsylvania Ave., NW., ask you to respond to specific questions ingredient: L-lactic acid Proposed Use: Washington, DC 20460–0001. or organize comments by referencing a Commercial water additive in fruit and SUPPLEMENTARY INFORMATION: Code of Federal Regulations (CFR) part vegetable processing and wash. Contact: I. General Information or section number. Jacqueline Campbell-McFarlane, iii. Explain why you agree or disagree; Antimicrobials Division, (703) 308– A. Does this action apply to me? suggest alternatives and substitute 6416, campbell- You may be potentially affected by language for your requested changes. [email protected]. this action if you are an agricultural iv. Describe any assumptions and 4. Registration Number/File Symbol: producer, food manufacturer, or provide any technical information 5383–RUE. Docket Number: EPA–HQ– pesticide manufacturer. Potentially and/or data that you used. OPP–2009–1000. Company name and

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address: Troy Chemical, Inc., 8 Metzger, Registration Division, (703) regarding the 10,000 Havana Street Site Vreeland Rd., P.O. Box 955, Florham 305–5314, [email protected]. (Site), located at 10,000 Havana Street, Park, NJ 07932–4200. Active ingredient: 10. Registration Number/File Symbol: Henderson, Colorado. This Settlement Terbutryn. Proposed Uses: Materials 65402–8. Docket Number: EPA–HQ– Agreement proposes to compromise a preservation of coatings, stuccos, roof OPP–2010–1030. Company name and claim the United States has at this Site coatings, joint cements, and sealants. address: FMC Corporation, Peroxygens for Past Response Costs, as those terms Contact: Jacqueline Campbell- Division, 1735 Market St., Philadelphia, are defined in the Settlement McFarlane, Antimicrobials Division, PA 19103, Submitted by: Keller and Agreement. Under the terms of the (703) 308–6416, campbell- Heckman, LLC, 1001 G St., NW., Settlement Agreement, EPA and the [email protected]. Washington, DC 20001. Active Settling Party agree that the Settling 5. Registration Number/File Symbol: ingredient: Hydrogen Peroxide at 23% Party has no ability to pay and the 5383–RUN. Docket Number: EPA–HQ– and Ethaneperoxoic Acid at 15%. Settling Party agrees not to assert any OPP–2009–1000. Company name and Proposed Use: To treat sewage and claims or causes of action against the address: Troy Chemical, Inc., 8 wastewater effluent related to public United States or its contractors or Vreeland Rd., P.O. Box 955, Florham and private wastewater treatment employees with respect to the Site. In Park, NJ 07932–4200. Active ingredient: plants. Contact: Karen M. Leavy, exchange, the Settling Party will be Terbutryn. Proposed Uses: Materials Antimicrobials Division, (703) 308– granted a covenant not to sue under preservation of joint cements, coatings, 6237, [email protected]. Section 107(a) of CERCLA, 42 U.S.C. sealants, stuccos, and plastics. Contact: 11. Registration Number/File Symbol: 9607(a), with regard to reimbursement Jacqueline Campbell-McFarlane, 87358–R. Docket Number: EPA–HQ– of Past Response Costs. Antimicrobials Division, (703) 308– OPP–2010–1038. Company name and Opportunity for Comment: For thirty 6416, campbell- address: Quick-Med Technologies, Inc., (30) days following the publication of [email protected]. 160 West Camino Real, #238, Boca this notice, EPA will consider all 6. Registration Number/File Symbol: Raton, FL 33432. Active ingredient: comments received and may modify or 6836–322. Docket Number: EPA–HQ– Hydrogen Peroxide. Proposed Use: withdraw its consent to that portion of OPP–2010–1034. Company name and Materials preservative applied to the Settlement Agreement, if comments address: Lonza Inc., 90 Borderline Rd., textiles for commercial and industrial received disclose facts or considerations Allendale, NJ 07401. Active ingredient: use only. Contact: Martha Terry, which indicate that the settlement is 1, 3-Bis (hydroxymethyl)-5, 5- Antimicrobials Division, (703) 308– inappropriate, improper, or inadequate. dimethylhydantoin and 6217, [email protected]. EPA’s response to any comments Hydroxymethyl-5, 5- List of Subjects received will be available for public dimethylhydantoin. Proposed Use: inspection at the Superfund Record Secondary oil recovery for hydantonins. Environmental protection, Pesticides Center, EPA Region 8, 1595 Wynkoop Contact: Jacqueline Campbell- and pest. Street, 3rd Floor, in Denver, Colorado. McFarlane, Antimicrobials Division, Dated: February 10, 2011. DATES: Comments must be submitted on (703) 308–6416, campbell- G. Jeffrey Herndon, or before March 25, 2011. [email protected]. Acting Director, Registration Division, Office ADDRESSES: The Settlement Agreement 7. Registration Number/File Symbol: of Pesticide Programs. and additional background information 8033–20, 8033–96, and 8033–109. [FR Doc. 2011–3717 Filed 2–22–11; 8:45 am] relating to the settlement are available Docket Number: EPA–HQ–OPP–2011– BILLING CODE 6560–50–P for public inspection at the Superfund 0007. Company name and address: Records Center, EPA Region 8, 1595 Nippon Soda Co., Ltd., c/o Nisso Wynkoop Street, 3rd Floor, in Denver, America Inc., 45 Broadway, Suite 2120, ENVIRONMENTAL PROTECTION Colorado. Comments and requests for a New York, NY 10006. Active ingredient: AGENCY copy of the Settlement Agreement Acetamiprid. Proposed Use: Food/feed [FRL–9269–7] should be addressed to Judith Binegar, handling establishments. Contact: Enforcement Specialist (8ENF–RC), Jennifer Urbanski, Registration Division, Settlement Agreement for Recovery of Technical Enforcement Program, U.S. (703) 347–0156, Past Response Costs 10,000 Havana Environmental Protection Agency, 1595 [email protected]. Street Site, Commerce City, Adams Wynkoop Street, Denver, Colorado 8. Registration Number/File Symbol: County, CO 80202–1129, and should reference the 11556–RLU, 11556–RLL. Docket 10,000 Havana Settlement Agreement Number: EPA–HQ–OPP–2011–0013. AGENCY: Environmental Protection for the 10,000 Havana Site in Company name and address: Bayer Agency. Henderson, Adams County, Colorado. HealthCare LLC, Animal Health ACTION: Notice and request for public FOR FURTHER INFORMATION CONTACT: Division, P.O. Box 390, Shawnee comment. Mission, Kansas 66201–0390. Active Judith Binegar, Enforcement Specialist, ingredient: Flumethrin. Proposed Uses: SUMMARY: In accordance with the (8ENF–RC), Technical Enforcement Dogs and cats. Contact: BeWanda requirements of Section 122(i)(1) of the Program, U.S. Environmental Protection Alexander, Registration Division, (703) Comprehensive Environmental Agency, 1595 Wynkoop Street, Denver, 305–7460, [email protected]. Response, Compensation, and Liability Colorado 80202–1129, (303) 312–6606. 9. Registration Number/File Symbol: Act, as amended (CERCLA), 42 U.S.C. It Is So Agreed: 59639–107 and 59639–138. Docket 9622(i)(1), notice is hereby given of a Andrew M. Gaydosh, Number: EPA–HQ–OPP–2010–0968. Settlement Agreement under Sections Assistant Regional Administrator, Office of Company name and address: Valent 104, 106(a), 107, and 122 of CERCLA, 42 Enforcement, Compliance and Environmental U.S.A. Corp, 1600 Riviera Ave., Suite U.S.C. 9604, 9606(a), 9607, and 9622, Justice, U.S. Environmental Protection 200, Walnut Creek, CA 94596. Active between the United States Agency, Region 8. ingredient: Etoxazole. Proposed Use: Environmental Protection Agency (EPA) [FR Doc. 2011–3997 Filed 2–22–11; 8:45 am] Corn and popcorn. Contact: Autumn and Cricket Mascarenas (Settling Party) BILLING CODE 6560–50–P

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FEDERAL COMMUNICATIONS Type of Review: Extension of a soon as possible, inform each cable COMMISSION currently approved collection. television system operator that has Respondents: Business or other for- previously received the notice of all Notice of Public Information profit entities. changes from the original notice. Notice Collection(s) Being Reviewed by the Number of Respondents and to be furnished ‘‘as soon as possible’’ Federal Communications Commission, Responses: 5,555 respondents; 199,304 under this subsection shall be furnished Comments Requested responses. by telephone, telegraph, facsimile, Estimated Time per Response: 0.5–2.0 overnight mail or other similar February 15, 2011. hours. expedient means. (2) In the event the SUMMARY: The Federal Communications Frequency of Response: On occasion protection specified in the modified Commission, as part of its continuing reporting requirement; One time notices described in Section 76.94(b) effort to reduce paperwork burden reporting requirement; Third party has been expanded, the broadcaster invites the general public and other disclosure requirement. shall, at least 60 calendar days prior to Federal agencies to take this Obligation to Respond: Required to broadcast of a protected program opportunity to comment on the obtain or retain benefits. The statutory entitled to such expanded protection, following information collection(s), as authority for this information collection notify each cable system operator that required by the Paperwork Reduction is contained in Section 4(i) of the has previously received notice of all Act (PRA) of 1995, 44 U.S.C. 3501–3520. Communications Act of 1934, as changes from the original notice. Comments are requested concerning: (a) amended. 47 CFR 76.94(e)(2) and 76.105(c)(2) Whether the proposed collection of Total Annual Burden: 183,856. state that if a cable television system information is necessary for the proper Total Annual Cost: None. asks a television station for information performance of the functions of the Privacy Act Impact Assessment: No about its program schedule, the Commission, including whether the impact(s). television station shall answer the information shall have practical utility; Nature and Extent of Confidentiality: request. (b) the accuracy of the Commission’s There is no need for confidentiality with 47 CFR 76.94(f) and 76.107 require a burden estimate; (c) ways to enhance this collection of information. distributor or broadcaster exercising the quality, utility, and clarity of the Needs and Uses: 47 CFR 76.94(a) and exclusivity to provide to the cable information collected; (d) ways to 76.105(a) require television stations and system, upon request, an exact copy of minimize the burden of the collection of program distributors to notify cable those portions of the contracts, such information on the respondents, television system operators of non- portions to be signed by both the including the use of automated duplication protection and exclusivity network and the broadcaster, setting collection techniques or other forms of rights being sought. The notification forth in full the provisions pertinent to information technology, and (e) ways to shall include (1) The name and address the duration, nature, and extent of the further reduce the information of the party requesting non-duplication non-duplication terms concerning collection burden on small business protection/exclusivity rights and the broadcast signal exhibition to which the concerns with fewer than 25 employees. television broadcast station holding the parties have agreed. Providing copies of The FCC may not conduct or sponsor non-duplication right; (2) the name of relevant portions of the contracts is a collection of information unless it the program or series for which assumed to be accomplished in the displays a currently valid control protection is sought; and (3) the dates notification process set forth in Sections number. No person shall be subject to on which protection is to begin and end. 76.94 and 76.105. any penalty for failing to comply with 47 CFR 76.94(b) requires broadcasters 47 CFR 76.95 states that the a collection of information subject to the entering into contracts providing for provisions of Sections 76.92 through Paperwork Reduction Act (PRA) that network non-duplication protection to 76.94 (including the notification does not display a currently valid OMB notify cable systems within 60 days of provisions of Section 76.94) shall not control number. the signing of such a contract. If they are apply to a cable system serving fewer unable to provide notices as provided DATES: Written Paperwork Reduction than 1,000 subscribers. Within 60 days for in Section 74.94(a), they must Act (PRA) comments should be following the provision of service to provide modified notices that contain submitted on or before April 25, 2011. 1,000 subscribers, the operator of each the name of the network which has If you anticipate that you will be such system shall file a notice to that extended non-duplication protection, submitting PRA comments, but find it effect with the Commission, and serve a the time periods by time of day and by difficult to do so within the period of copy of that notice on every television network for each day of the week that time allowed by this notice, you should station that would be entitled to the broadcaster will be broadcasting advise the FCC contact listed below as exercise network non-duplication programs from that network, and the soon as possible. protection against it. duration and extent of the protection. 47 CFR 76.105(d) requires that in the ADDRESSES: Direct all PRA comments to 47 CFR 76.94(d) requires broadcasters event the exclusivity specified in the Federal Communications to provide the following information to Section 76.94(a) has been limited or has Commission via e-mail to [email protected] cable television systems under the ended prior to the time specified in the and [email protected]. following circumstances: (1) In the notice, the distributor or broadcaster FOR FURTHER INFORMATION CONTACT: For event the protection specified in the who has supplied the original notice additional information, contact Cathy notices described in 47 CFR 76.94(a) or shall, as soon as possible, inform each Williams on (202) 418–2918. (b) has been limited or ended prior to cable television system operator that has SUPPLEMENTARY INFORMATION: the time specified in the notice, or in previously received the notice of all OMB Control Number: 3060–0419. the event a time period, as identified to changes from the original notice. In the Title: Sections 76.94, Notification; the cable system in a notice pursuant to event the original notice specified 76.95, Exceptions; 76.105, Notification; Section 76.94(b) for which a broadcaster contingent dates on which exclusivity is 76.106, Exceptions; 76.107, Exclusivity has obtained protection is shifted to to begin and/or end, the distributor or contracts; and 76.1609, Non duplication another time of day or another day (but broadcaster shall, as soon as possible, and Syndicated Exclusivity. not expanded), the broadcaster shall, as notify the cable television system

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operator of the occurrence of the the quality, utility, and clarity of the any applications for renewal, new relevant contingency. Notice to be information collected; (d) ways to construction permits, modifications, furnished ‘‘as soon as possible’’ under minimize the burden of the collection of and transfers/assignments, and the filing this subsection shall be furnished by information on the respondents, party seeks to dismiss or withdraw the telephone, telegraph, facsimile, including the use of automated petition to deny or the informal overnight mail or other similar collection techniques or other forms of objection, either unilaterally or in expedient means. information technology, and (e) ways to exchange for financial consideration, 47 CFR 76.106(b) states that the further reduce the information that party must file with the provisions of Sections 76.101 through collection burden for small business Commission a request for approval of 76.105 (including the notification concerns with fewer than 25 employees. the dismissal or withdrawal. This provisions of Section 76.105) shall not The FCC may not conduct or sponsor request must include the following apply to a cable system serving fewer a collection of information unless it documents: (1) A copy of any written than 1,000 subscribers. Within 60 days displays a currently valid control agreement related to the dismissal or following the provision of service to number. No person shall be subject to withdrawal, (2) an affidavit stating that 1,000 subscribers, the operator of each any penalty for failing to comply with the petitioner has not received any such system shall file a notice to effect a collection of information subject to the consideration in excess of legitimate with the Commission, and serve a copy Paperwork Reduction Act (PRA) that and prudent expenses in exchange for of that notice on every television station does not display a currently valid OMB dismissing/withdrawing its petition, (3) that would be entitled to exercise control number. an itemization of the expenses for which syndicated exclusivity protection Dates: Written Paperwork Reduction it is seeking reimbursement, and (4) the against it. Act (PRA) comments should be terms of any oral agreements related to 47 CFR 76.1609 states that network submitted on or before April 25, 2011. the dismissal or withdrawal of the non-duplication provisions of Sections If you anticipate that you will be petitions to deny. Each remaining party 76.92 through 76.94 shall not apply to submitting PRA comments, but find it to any written or oral agreement must cable systems serving fewer than 1,000 difficult to do so within the period of submit an affidavit within 5 days of subscribers. Within 60 days following time allowed by this notice, you should petitioner’s request for approval stating the provision of service to 1,000 advise the FCC contact listed below as that it has paid no consideration to the subscribers, the operator of each system soon as possible. petitioner in excess of the petitioner’s shall file a notice to that effect with the Addresses: Direct all PRA comments legitimate and prudent expenses. The Commission, and serve a copy of that to Nicholas A. Fraser, Office of affidavit must also include the terms of notice on every television station that Management and Budget, via fax at 202– any oral agreements relating to the would be entitled to exercise network 395–5167 or via e-mail to dismissal or withdrawal of the petition non-duplication or syndicated [email protected] and to deny. exclusivity protection against it. to the Federal Communications Federal Communications Commission. Federal Communications Commission. Commission via e-mail to [email protected]. Marlene H. Dortch, Marlene H. Dortch, For Further Information Contact: For Secretary, Office of the Secretary, Office of Secretary, Office of the Secretary, Office of additional information, contact Cathy Managing Director. Managing Director. Williams on (202) 418–2918. [FR Doc. 2011–3986 Filed 2–22–11; 8:45 am] Supplementary Information: [FR Doc. 2011–3958 Filed 2–22–11; 8:45 am] BILLING CODE 6712–01–P BILLING CODE 6712–01–P OMB Control Number: 3060–0423. Title: Section 73.3588, Dismissal of Petitions to Deny or Withdrawal of Informal Objections. FEDERAL DEPOSIT INSURANCE FEDERAL COMMUNICATIONS CORPORATION COMMISSION Type of Review: Extension of a currently approved collection. Agency Information Collection Notice of Public Information Respondents: Business or other for- Activities: Submission for OMB Collection(s) Being Reviewed by the profit entities. Review; Comment Request Federal Communications Commission Number of Respondents and for Extension Under Delegated Responses: 50 respondents; 50 AGENCY: Federal Deposit Insurance Authority, Comments Requested responses. Corporation (FDIC). Estimated Time per Response: 20 ACTION: Notice of information collection February 17, 2011. minutes (0.33 hours). to be submitted to OMB for review and Summary: The Federal Frequency of Response: On occasion approval under the Paperwork Communications Commission, as part of reporting requirement. Reduction Act. its continuing effort to reduce Obligation to Respond: Required to paperwork burden invites the general obtain or retain benefits. The statutory SUMMARY: In accordance with public and other Federal agencies to authority for this collection is contained requirements of the Paperwork take this opportunity to comment on the in Section 154(i) of the Communications Reduction Act of 1995 (‘‘PRA’’), 44 following information collection(s), as Act of 1934, as amended. U.S.C. 3501 et seq., the FDIC may not required by the Paperwork Reduction Total Annual Burden: 17 hours. conduct or sponsor, and the respondent Act (PRA) of 1995, 44 U.S.C. 3501–3520. Total Annual Cost: 63,750. is not required to respond to, an Comments are requested concerning: (a) Privacy Act Impact Assessment: No information collection unless it displays Whether the proposed collection of impact(s). a currently valid Office of Management information is necessary for the proper Nature and Extent of Confidentiality: and Budget (OMB) control number. The performance of the functions of the There is no need for confidentiality with FDIC, as part of its continuing effort to Commission, including whether the this collection of information. reduce paperwork and respondent information shall have practical utility; Needs and Uses: 47 CFR 73.3588 burden, invites the general public and (b) the accuracy of the Commission’s states whenever a petition to deny or an other Federal agencies to take this burden estimate; (c) ways to enhance informal objection has been filed against opportunity to comment on the renewal

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of an existing information collection, as necessary for the proper performance of GENERAL SERVICES required by the PRA. On December 6, the FDIC’s functions, including whether ADMINISTRATION 2010 (75 FR 75675), the FDIC solicited the information has practical utility; (b) public comment for a 60-day period on the accuracy of the estimates of the [2010–PBS–2; Docket 2011–0006; Sequence 6] renewal of the following information burden of the information collection, collection: Procedures for Monitoring including the validity of the Notice of Intent To Prepare an Bank Secrecy Act Compliance (OMB methodology and assumptions used; (c) Environmental Assessment, Request No. 3064–0087). No comments were ways to enhance the quality, utility, and for Comments on Environmental received. Therefore, the FDIC hereby clarity of the information to be Issues, and Notice of Public Scoping gives notice of submission of its collected; and (d) ways to minimize the Meeting requests for renewal to OMB for review. burden of the information collection on DATES: Comments must be submitted on respondents, including through the use AGENCY: Public Building Services (PBS); or before March 25, 2011. of automated collection techniques or General Services Administration (GSA). ADDRESSES: Interested parties are other forms of information technology. ACTION: Notice of intent to prepare an invited to submit written comments to All comments will become a matter of Environmental Assessment, request for the FDIC by any of the following public record. comments on Environmental Issues, and methods: Notice of Public Scoping Meeting. • Dated at Washington, DC, this 17th day of http://www.FDIC.gov/regulations/ February 2011. SUMMARY: The General Services laws/federal/notices.html. Federal Deposit Insurance Corporation. • E-mail: [email protected] Include Administration (GSA) will prepare an the name of the collection in the subject Robert E. Feldman, Environmental Assessment (EA) that line of the message. Executive Secretary. will analyze and discuss the • Mail: Gary A. Kuiper (202–898– [FR Doc. 2011–3988 Filed 2–22–11; 8:45 am] environmental impacts of renovations of 3719), Counsel, Room F–1086, Federal BILLING CODE 6741–01–P the Charles F. Prevedel Federal Building Deposit Insurance Corporation, 550 17th and demolition of buildings 100, 101, Street, NW., Washington, DC 20429. and 102 at the Federal Records Center, • Hand Delivery: Comments may be Page Complex, located in Overland, hand-delivered to the guard station at FEDERAL RETIREMENT THRIFT Missouri. Through the project, GSA the rear of the 17th Street Building INVESTMENT BOARD proposes to relocate Federal tenants into (located on F Street), on business days the Charles F. Prevedel Federal between 7 a.m. and 5 p.m. Sunshine Act; Notice of Meeting Building. The Page Federal Complex is All comments should refer to the located at 9700 Page Blvd., Overland, relevant OMB control number. A copy TIME AND DATE: 9 a.m. (Eastern Time), Missouri, which is in Missouri’s 1st of the comments may also be submitted February 28, 2011. Congressional District. to the OMB desk officer for the FDIC: PLACE: 4th Floor Conference Room, In the EA, GSA will discuss impacts Office of Information and Regulatory 1250 H Street, NW., Washington, DC that could occur as a result of the Affairs, Office of Management and 20005. construction and operation of the Budget, New Executive Office Building, proposed project. GSA will also Washington, DC 20503. STATUS: Parts will be open to the public evaluate the ‘‘No Action’’ and other FOR FURTHER INFORMATION CONTACT: Gary and parts closed to the public. reasonable alternatives to the proposed project, or portions of the project, and A. Kuiper, at the FDIC address above. MATTERS TO BE CONSIDERED: SUPPLEMENTARY INFORMATION: Proposal consider how to lessen or avoid impacts to renew the following currently Parts Open to the Public on the various resource areas. DATES: Comment date: Submit approved collection of information: 1. Approval of the minutes of the Title: Procedures for Monitoring Bank comments on or before March 17, 2011. January 25, 2011 Board member Secrecy Act Compliance. Public meeting date is: February 28, meeting. OMB Number: 3064–0087. 2011, 2 p.m. to 3:30 p.m., Prevedel Frequency of Response: On occasion. 2. Thrift Savings Plan activity report Federal Building, 9700 Page Blvd., Affected Public: Insured state by the Executive Director. Overland, Missouri 63132. nonmember banks. a. Monthly Participant Activity ADDRESSES: Estimated Number of Respondents: Submit comments Report. 4,822. identified by Notice 2010–PBS–2, by b. Quarterly Investment Policy any of the following methods: Estimated Time per Response: 67.5 • hours. Review. Regulations.gov: http:// www.regulations.gov. Submit comments Total Annual Burden: 325,620 hours. c. Legislative Report. General Description of Collection: via the Federal eRulemaking portal by Respondents must establish and Parts Closed to the Public inputting ‘‘Notice 2010–PBS–2’’ under maintain procedures designed to assure the heading ‘‘Enter Keyword or ID’’ and and monitor their compliance with the 1. Confidential Financial Information. selecting ‘‘Search.’’ Select the link requirements of the Bank Secrecy Act CONTACT PERSON FOR MORE INFORMATION: ‘‘Submit a Comment’’ that corresponds and the implementing regulations Thomas J. Trabucco, Director, Office of with ‘‘Notice 2010–PBS–2.’’ Follow the promulgated by the Department of External Affairs, (202) 942–1640. instructions provided at the ‘‘Submit a Treasury at 31 CFR part 103. Comment’’ screen. Please include your Dated: February 18, 2011. Respondents must also provide training name, company name (if any), and for appropriate personnel. Megan G. Grumbine, ‘‘Notice 2010–PBS–2’’ on your attached Assistant General Counsel, Federal document. Request for Comment Retirement Thrift Investment Board. • Comments can also be filed Comments are invited on: (a) Whether [FR Doc. 2011–4131 Filed 2–18–11; 4:15 pm] electronically, by e-mail, to the collection of information is BILLING CODE 6760–01–P [email protected].

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Instructions: Please submit comments comments should be sent to GSA on or Pennsylvania Avenue, NW., only and cite ‘‘Notice 2010–PBS–2.’’, in before March 17, 2011. With any Washington, DC. Due to security, there all correspondence related to this case. comments, before including address, will be no public admittance to the All comments received will be posted phone number, e-mail address, or other Eisenhower Building to attend the without change to http:// personal identifying information in your meeting. However, public access to the www.regulations.gov, including any comment, be advised that the entire meeting will be available via live personal and/or business confidential comment, including personal webcast at http://www.whitehouse.gov. information provided. identifying information, may be made FOR FURTHER INFORMATION CONTACT: Ms. FOR FURTHER INFORMATION CONTACT: publicly available at any time. While Jill Schiller, Alternate Designated Jeremiah Nelson, GSA Regional NEPA you can ask in your comment to Federal Officer, President’s Management Coordinator, 1500 East Bannister Road, withhold from public review personal Advisory Board, Office of Executive Room 2135 (6PTA), Kansas City, identifying information, GSA cannot Councils, General Services Missouri 64131; Telephone (816) 823– guarantee that it will be able to do so. Administration, 1776 G Street, NW., 5803. Finally, in lieu of or in addition to Washington, DC 20220, at sending written comments, GSA also SUPPLEMENTARY INFORMATION: [email protected]. General: This EA is being prepared invites you to attend the public scoping SUPPLEMENTARY INFORMATION: pursuant to the National Environmental meeting scheduled and discussed in the Policy Act, 42 U.S.C. 4321 (NEPA), and body of this notice, above. Comments Background: The purpose of this regulations implementing NEPA issued made at the public scoping meeting will meeting is to discuss general by the Council on Environmental also be considered in the EA process. organizational matters of the PMAB and State and local government Quality (40 CFR 1500–1508), GSA ADM begin discussing the issues impacting representatives are asked to notify their 1095.1, the GSA PBS NEPA Desk Guide the management techniques of the constituents of this planned project and and other applicable regulations and Nation’s government. The PMAB was encourage them to comment on their policies. The EA will inform GSA in its established to provide independent areas of concern. decision-making process. Compliance advice and recommendations to the A fact sheet prepared by GSA will be with the National Historic Preservation President and the President’s made available at the Public Scoping Act (NHPA), including NHPA Section Management Council on a wide range of Meeting and will be posted to a GSA 106, and other laws and requirements, issues related to the development of Project Web site (http://www.gsa.gov/ will be coordinated with this EA effective strategies for the r6news), thereafter. process, and government agencies that implementation of best business are affected by the proposed actions or Dated: February 17, 2011. practices to improve Federal have special expertise will be consulted. Kevin D. Rothmier, Government management and operation, with a particular focus on An independent analysis of the issues Director of Portfolio Management (6PT), U.S. will be presented in the EA. The EA will General Services Administration, PBS, productivity, the application of be placed in the public record and a Heartland Region. technology, and customer service. comment period will be allotted on the [FR Doc. 2011–3967 Filed 2–22–11; 8:45 am] Availability of Materials for the Draft EA. GSA will consider all BILLING CODE 6820–CG–P Meeting: Please see the PMAB Web site comments on the EA before making a for any available materials, including final decision. the draft agenda for this meeting at Purpose of Notice: The purpose of this GENERAL SERVICES http://www.whitehouse.gov. Questions/ notice is to (1) Announce GSA’s intent ADMINISTRATION issues of particular interest to PMAB to prepare an EA; (2) announce the will also be made available to the public [Notice MC–2011–1; Docket No. 2011–0006; on this Web site. The public should initiation of the public scoping process; Sequence 5] (3) invite public participation during the address any of these questions/issues scoping process and at the public The President’s Management Advisory when presenting written statements to scoping meeting; and (4) request public Board (PMAB); Notification of PMAB. comments on the scope of the EA, Upcoming Public Advisory Meeting Procedures for Providing Public including the potential environmental Comments: In general, statements will impacts associated with the proposed AGENCY: Office of Executive Councils, be posted on the White House Web site action. U.S. General Services Administration (http://www.whitehouse.gov), and Further Information on Public (GSA). should include business or personal Participation and Dates: The public is ACTION: Notice. information such as names, addresses, encouraged to provide GSA with email addresses, or telephone numbers. specific comments or concerns about SUMMARY: The President’s Management Non-electronic documents will be made the project. Comments should focus on Advisory Board, a Federal Advisory available for public inspection and the potential environmental effects, Committee established in accordance copying in PMAB offices at GSA, 1776 reasonable alternatives, and measures to with the Federal Advisory Committee G Street, NW., Washington, DC 20220, avoid or lessen environmental impacts. Act (FACA), 5 U.S.C., App., and on official business days between the In addition to the above methods for Executive Order 13538, will hold a hours of 10 a.m. and 5 p.m. eastern submission of comments, those public meeting on March 11, 2011. time. You can make an appointment to interested may also file a paper copy of DATES: Effective date: February 23, 2011. inspect statements by telephoning (202) comments, by regular mail, to Jeremiah Meeting date: The meeting will be 208–2664. All statements, including Nelson, GSA Region 6 NEPA held on Friday, March 11, 2011, attachments and other supporting Coordinator, 1500 E. Bannister Road, beginning at 10 a.m. eastern time, materials, received are part of the public Room 2135, Kansas City, Missouri ending no later than 12 p.m. record and subject to public disclosure. 64131 or verbally offer comments to ADDRESSES: The PMAB will convene its Any statements submitted in connection GSA’s Region 6 NEPA Coordinator by first meeting in the Eisenhower with the PMAB meeting will be made calling (816) 823–5803. Again, Executive Office Building, 1650 available to the public under the

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provisions of the Federal Advisory DEPARTMENT OF HEALTH AND To obtain copies of the supporting Committee Act. HUMAN SERVICES statement and any related forms for the proposed paperwork collections The public is invited to submit [30-day notice] written statements for this meeting to referenced above, e-mail your request, the Advisory Committee prior to the Agency Information Collection including your address, phone number, OMB number, to [email protected], meeting until March 9, 2011, by either Request. 30-Day Public Comment or call the Reports Clearance Office on of the following methods: Request, Grants.gov (202) 690–7569. Send written comments Electronic Statements: Submit written AGENCY: Office of the Secretary, HHS. and recommendations for the proposed statements to Jill Schiller, Alternate In compliance with the requirement information collections within 30 days Designated Federal Officer at of section 3506(c)(2)(A) of the of this notice directly to the Grants.gov [email protected]; or Paperwork Reduction Act of 1995, the OMB Desk Officer; faxed to OMB at Paper Statements: Send paper Office of the Secretary (OS), Department 202–395–6974. statements in triplicate to Jill Schiller at of Health and Human Services, is Proposed Project: SF–424 Mandatory President’s Management Advisory publishing the following summary of a Form—OMB No. 4040–0002- Board, Office of Executive Councils, proposed collection for public Reinstatement with Change- Grants.gov General Services Administration, 1776 comment. Interested persons are invited Office. to send comments regarding this burden Abstract: Grants.gov is requesting G Street, NW., Washington, DC 20220. estimate or any other aspect of this OMB approval to reinstate with change Meeting Accommodations: Public collection of information, including any the previously approved SF 424 access to the meeting will be available of the following subjects: (1) The Mandatory form (4040–0002) for three via live webcast only at http:// necessity and utility of the proposed years. The fax number in block 17 will www.whitehouse.gov. information collection for the proper be changed to be an optional entry. The Dated: February 16, 2011. performance of the agency’s functions; Mandatory form is the common form (2) the accuracy of the estimated used by Federal grant-making agencies Robert Flaak, burden; (3) ways to enhance the quality, for grant applications under mandatory Director, Office of Committee and Regulatory utility, and clarity of the information to grant programs. It replaced numerous Management, General Services be collected; and (4) the use of agency-specific forms. The form reduces Administration. automated collection techniques or the administrative burden to the Federal [FR Doc. 2011–3954 Filed 2–22–11; 8:45 am] other forms of information technology to grants community, which includes BILLING CODE 6820–38–P minimize the information collection applicants/grantees and Federal staff burden. involved in grants-related activities.

ESTIMATED ANNUALIZED BURDEN TABLE

SF–424 Average burden Mandatory num- Number of Total annual on respondent Total burden Agency ber of annual responses per responses per response in hours respondents respondent hours

CNCS ...... 0 1 0 1 0 COMMERCE ...... 0 1 0 1 0 DHS ...... 1329 1 1329 1 1329 DOD ...... 2 1 2 1 2 DOE ...... 0 1 0 1 0 DOI ...... 180 1 180 1 180 DOL ...... 2528 1 2528 1 2528 DOT ...... 148 1 148 1 148 ED ...... 0 1 0 1 0 EPA ...... 0 1 0 1 0 HHS ...... 7814 1 7814 1 7814 HUD ...... 0 1 0 1 0 IMLS ...... 0 1 0 1 0 NARA ...... 0 1 0 1 0 NASA ...... 0 1 0 1 0 NEA ...... 98 1 98 1 98 NEH ...... 0 1 0 1 0 NIST ...... 639 1 639 1 639 NRC ...... 0 1 0 1 0 NSF ...... 0 1 0 1 0 SBA ...... 853 1 853 1 853 SSA ...... 115 1 115 1 115 STATE ...... 3,644 1 3644 1 3644 TREASURY ...... 0 1 0 1 0 USAID ...... 20 1 20 1 20 USDA ...... 116,526 1 116526 1 116526 USDOJ ...... 77 1 77 1 77 VA ...... 591 1 591 1 591

Total ...... 134,564 ...... 134,564 134,564

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Seleda Perryman, of the following subjects: (1) The Programs—Reinstatement with Change- Office of the Secretary, HHS PRA Reports necessity and utility of the proposed OMB No. 4040–0007 –Grants.gov Office. Clearance Officer. information collection for the proper Abstract: Grants.gov is requesting [FR Doc. 2011–3960 Filed 2–22–11; 8:45 am] performance of the agency’s functions; OMB approval to reinstate with change (2) the accuracy of the estimated BILLING CODE 4151–AE–P the previously approved SF–424B burden; (3) ways to enhance the quality, Assurances—Non-Construction utility, and clarity of the information to DEPARTMENT OF HEALTH AND be collected; and (4) the use of Programs (SF–424B) form (4040–0007) HUMAN SERVICES automated collection techniques or for three years. The information will other forms of information technology to reflect the updated changes to the legal [30-day notice] minimize the information collection citations located within the United States Code. The ‘‘Trafficking Victims Agency Information Collection burden. ’’ Request. 30-Day Public Comment To obtain copies of the supporting Protection Act of 2000 (Section 106), as Request, Grants.gov statement and any related forms for the amended (22 U.S.C. 7104 (g) has been proposed paperwork collections added in Section 18. AGENCY: Office of the Secretary, HHS. referenced above, e-mail your request, The SF–424B is used to provide In compliance with the requirement including your address, phone number, information on required assurances of section 3506(c)(2)(A) of the OMB number, to [email protected], when applying for non-construction Paperwork Reduction Act of 1995, the or call the Reports Clearance Office on Federal grants. The Federal awarding Office of the Secretary (OS), Department (202) 205–1193. Send written comments agencies use information reported on of Health and Human Services, is and recommendations for the proposed publishing the following summary of a information collections within 30 days the form for the evaluation of award and proposed collection for public of this notice directly to the Grants.gov general management of Federal comment. Interested persons are invited OMB Desk Officer; faxed to OMB at assistance program awards. The only to send comments regarding this burden 202–395–6974. information collected on the form is the estimate or any other aspect of this Proposed Project: The SF–424B applicant signature, title and date collection of information, including any Assurances—Non-Construction submitted.

ESTIMATED ANNUALIZED BURDEN HOUR TABLE

Average bur- SF–424 B No. No. of re- den on re- Agency of annual re- sponses per Total annual spondent per Total burden spondents respondent responses response in hours hours

CNCS ...... 5181 1 5181 30/60 2591 COMMERCE ...... 6151 1 6151 30/60 3076 DHS ...... 2493 1 2493 30/60 1247 DOD ...... 5 1 5 30/60 3 DOE ...... 0 1 0 30/60 0 DOI ...... 1144 1 1144 30/60 572 DOL ...... 2265 1 2265 30/60 1133 DOT ...... 893 1 893 30/60 447 ED ...... 0 1 0 30/60 0 EPA ...... 4000 1 4000 30/60 2000 HHS ...... 12682 1 12682 30/60 6341 HUD ...... 0 1 0 30/60 0 IMLS ...... 0 1 0 30/60 0 NARA ...... 0 1 0 30/60 0 NASA ...... 0 1 0 30/60 0 NEA ...... 0 1 0 30/60 0 NEH ...... 0 1 0 30/60 0 NIST ...... 446 1 446 30/60 223 NRC ...... 233 1 233 30/60 117 NSF ...... 0 1 0 30/60 0 SBA ...... 827 1 827 30/60 414 SSA ...... 115 1 115 30/60 58 STATE ...... 0 1 0 30/60 0 TREASURY ...... 478 1 478 30/60 239 USAID ...... 304 1 304 30/60 152 USDA ...... 9027 1 9027 30/60 4514 USDOJ ...... 77 1 77 30/60 39 VA ...... 200 1 200 30/60 100 TOTAL ...... 23,266

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Seleda Perryman, collection of information, including any Proposed Project: The SF–424D Office of the Secretary, HHS PRA Reports of the following subjects: (1) The Assurances—Construction Programs— Clearance Officer. necessity and utility of the proposed OMB No. 4040–0009–Reinstatement [FR Doc. 2011–3962 Filed 2–22–11; 8:45 am] information collection for the proper with Change-Grants.gov Office. BILLING CODE 4151–AE–P performance of the agency’s functions; Abstract: Grants.gov is requesting (2) the accuracy of the estimated OMB approval to reinstate with change burden; (3) ways to enhance the quality, the previously approved the SF–424D DEPARTMENT OF HEALTH AND utility, and clarity of the information to Assurances—Construction Programs HUMAN SERVICES be collected; and (4) the use of (SF–424D) form (4040–0009) for three automated collection techniques or years. The change will be to the legal [30-day notice] other forms of information technology to citations which have been updated to Agency Information Collection minimize the information collection reflect changes in location within the Request. 30-Day Public Comment burden. United States Code. The ‘‘Trafficking Request, Grants.gov To obtain copies of the supporting Victims Protection Act of 2000 (Section statement and any related forms for the 106)’’, as amended (22 U.S.C. 7104 (g) AGENCY: Office of the Secretary, HHS. proposed paperwork collections has been added in Section 19. In compliance with the requirement referenced above, e-mail your request, The SF–424D is used to provide of section 3506(c)(2)(A) of the including your address, phone number, information on required assurances Paperwork Reduction Act of 1995, the OMB number, to [email protected], when applying for construction Federal Office of the Secretary (OS), Department or call the Reports Clearance Office on grants. The Federal awarding agencies of Health and Human Services, is (202) 205–1193. Send written comments use information reported on the form for publishing the following summary of a and recommendations for the proposed the evaluation of award and general proposed collection for public information collections within 30 days management of Federal assistance comment. Interested persons are invited of this notice directly to the Grants.gov program awards. The only information to send comments regarding this burden OMB Desk Officer; faxed to OMB at collected on the form is the applicant estimate or any other aspect of this 202–395–6974. signature, title and date submitted.

ESTIMATED ANNUALIZED BURDEN TABLE

Average bur- SF–424D No. No. of re- den on re- Agency of annual re- sponses per Total annual spondent per Total burden spondents respondent responses response in hours hours

CNCS ...... 0 1 0 30/60 0 COMMERCE ...... 1908 1 1908 30/60 954 DHS ...... 1421 1 1421 30/60 711 DOD ...... 1 1 1 30/60 1 DOE ...... 0 1 0 30/60 0 DOI ...... 77 1 77 30/60 39 DOL ...... 0 1 0 30/60 0 DOT ...... 55 1 55 30/60 28 ED ...... 0 1 0 30/60 0 EPA ...... 0 1 0 30/60 0 HHS ...... 52 1 52 30/60 26 HUD ...... 0 1 0 30/60 0 IMLS ...... 0 1 0 30/60 0 NARA ...... 0 1 0 30/60 0 NASA ...... 0 1 0 30/60 0 NEA ...... 0 1 0 30/60 0 NEH ...... 0 1 0 30/60 0 NIST ...... 193 1 193 30/60 97 NRC ...... 0 1 0 30/60 0 NSF ...... 0 1 0 30/60 0 SBA ...... 26 1 26 30/60 13 SSA ...... 0 1 0 30/60 0 STATE ...... 0 1 0 30/60 0 TREASURY ...... 0 1 0 30/60 0 USAID ...... 289 1 289 30/60 145 USDA ...... 727 1 727 30/60 364 USDOJ ...... 0 1 0 30/60 0 VA ...... 391 1 391 30/60 196 Total ...... 2,574

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Seleda Perryman, to send comments regarding this burden information collections within 30 days Office of the Secretary, HHS PRA Reports estimate or any other aspect of this of this notice directly to the Grants.gov Clearance Officer. collection of information, including any OMB Desk Officer; faxed to OMB at [FR Doc. 2011–3964 Filed 2–22–11; 8:45 am] of the following subjects: (1) The 202–395–6974. BILLING CODE 4151–AE–P necessity and utility of the proposed Proposed Project: The SF424C Budget information collection for the proper Information—Construction Programs— performance of the agency’s functions; Reinstatement with Change—OMB No. DEPARTMENT OF HEALTH AND (2) the accuracy of the estimated 4040–0008—Grants.gov Office. HUMAN SERVICES burden; (3) ways to enhance the quality, Abstract: Grants.gov is requesting [30-day notice] utility, and clarity of the information to be collected; and (4) the use of OMB approval to reinstate with change the previously approved the SF424C Agency Information Collection automated collection techniques or other forms of information technology to Budget Information—Construction Request. 30-Day Public Comment Programs (SF424C) form (4040–0008) Request, Grants.gov minimize the information collection burden. for three years. This form will be AGENCY: Office of the Secretary, HHS. To obtain copies of the supporting utilized by up to 26 Federal grant In compliance with the requirement statement and any related forms for the making agencies. of section 3506(c)(2)(A) of the proposed paperwork collections The SF424C is used to provide budget Paperwork Reduction Act of 1995, the referenced above, e-mail your request, information when applying for Office of the Secretary (OS), Department including your address, phone number, construction Federal grants. The Federal of Health and Human Services, is OMB number, to [email protected], awarding agencies use information publishing the following summary of a or call the Reports Clearance Office on reported on the form for the evaluation proposed collection for public (202) 205–1193. Send written comments of award and general management of comment. Interested persons are invited and recommendations for the proposed Federal assistance program awards.

ESTIMATED ANNUALIZED BURDEN TABLE

Average burden SF–424C No. of No. of responses Total annual re- on respondent Total burden Agency annual respond- per respondent sponses per response in hours ents hours

CNCS ...... 0 1 0 1 0 COMMERCE ...... 1908 1 1908 1 1908 DHS ...... 1421 1 1421 1 1421 DOD ...... 1 1 1 1 1 DOE ...... 0 1 0 1 0 DOI ...... 131 1 131 1 131 DOL ...... 0 1 0 1 0 DOT ...... 50 1 50 1 50 ED ...... 0 1 0 1 0 EPA ...... 0 1 0 1 0 HHS ...... 52 1 52 1 52 HUD ...... 0 1 0 1 0 IMLS ...... 0 1 0 1 0 NARA ...... 0 1 0 1 0 NASA ...... 0 1 0 1 0 NEA ...... 0 1 0 1 0 NEH ...... 0 1 0 1 0 NIST ...... 193 1 193 1 193 NRC ...... 1 1 1 1 1 NSF ...... 0 1 0 1 0 SBA ...... 26 1 26 1 26 SSA ...... 0 1 0 1 0 STATE ...... 0 1 0 1 0 TREASURY ...... 0 1 0 1 0 USAID ...... 294 1 294 1 294 USDA ...... 7879 1 7879 1 7879 USDOJ ...... 0 1 0 1 0 VA ...... 391 1 391 1 391

Total ...... 12,347

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Seleda Perryman, information collection for the proper Abstract: Grants.gov is requesting Office of the Secretary, HHS PRA Reports performance of the agency’s functions; OMB approval to reinstate with change Clearance Officer. (2) the accuracy of the estimated the previously approved the SF–424A [FR Doc. 2011–3963 Filed 2–22–11; 8:45 am] burden; (3) ways to enhance the quality, Budget Information—Non-Construction BILLING CODE 4151–AE–P utility, and clarity of the information to Programs (SF–424A) form (4040–0006) be collected; and (4) the use of for three years. We are renewing the automated collection techniques or form with two proposed changes to the DEPARTMENT OF HEALTH AND other forms of information technology to instructions only. In the ‘‘General HUMAN SERVICES minimize the information collection Instructions’’ section, the following [30-day notice] burden. sentence is added as the last sentence: To obtain copies of the supporting ‘‘In ALL cases total funding budgets Agency Information Collection statement and any related forms for the should be reflected NOT only Request. 30-Day Public Comment proposed paperwork collections incremental budget request changes.’’ Request, Grants.gov referenced above, e-mail your request, Also, in the ‘‘Section B Budget AGENCY: Office of the Secretary, HHS. including your address, phone number, Categories’’ section, the last sentence is In compliance with the requirement OMB number, to [email protected], revised as follows: ‘‘For each program, of section 3506(c)(2)(A) of the or call the Reports Clearance Office on function or activity, fill in the total (202) 205–1193. Send written comments Paperwork Reduction Act of 1995, the requirements for funds, Federal funding and recommendations for the proposed Office of the Secretary (OS), Department only, by object class categories.’’ of Health and Human Services, is information collections within 30 days publishing the following summary of a of this notice directly to the Grants.gov The SF–424A is used to provide proposed collection for public OMB Desk Officer; faxed to OMB at budget information when applying for comment. Interested persons are invited 202–395–6974. non-construction Federal grants. The to send comments regarding this burden Proposed Project: The SF–424A Federal awarding agencies use estimate or any other aspect of this Budget Information—Non-Construction information reported on the form for the collection of information, including any Programs—Reinstatement with evaluation of award and general of the following subjects: (1) The Change—OMB No. 4040–0006— management of Federal assistance necessity and utility of the proposed Grants.gov Office. program awards.

ESTIMATED ANNUALIZED BURDEN HOUR TABLE

Average bur- SF–424A Number of re- den on re- Agency number of an- sponses per Total annual spondent per Total burden nual respond- respondent responses response in hours ents hours

CNCS ...... 0 1 0 1 0 COMMERCE ...... 6151 1 6151 1 6151 DHS ...... 2493 1 2493 1 2493 DOD ...... 5 1 5 1 5 DOE ...... 0 1 0 1 0 DOI ...... 1144 1 1144 1 1144 DOL ...... 2265 1 2265 1 2265 DOT ...... 893 1 893 1 893 ED ...... 0 1 0 1 0 EPA ...... 4000 1 4000 1 4000 HHS ...... 12682 1 12682 1 12682 HUD ...... 0 1 0 1 0 IMLS ...... 0 1 0 1 0 NARA ...... 0 1 0 1 0 NASA ...... 0 1 0 1 0 NEA ...... 0 1 0 1 0 NEH ...... 0 1 0 1 0 NIST ...... 446 1 446 1 446 NRC ...... 233 1 233 1 233 NSF ...... 0 1 0 1 0 SBA ...... 827 1 827 1 827 SSA ...... 115 1 115 1 115 STATE ...... 0 1 0 1 0 TREASURY ...... 478 1 478 1 478 USAID ...... 304 1 304 1 304 USDA ...... 9027 1 9027 1 9027 USDOJ ...... 77 1 77 1 77 VA ...... 200 1 200 1 200

Total ...... 41,340 ...... 41,340 ...... 41,340

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Seleda Perryman, needle exchange program would be as amended. The grant applications and Office of the Secretary, HHS PRA Reports effective in reducing drug abuse and the the discussions could disclose Clearance Officer. risk that the public will become infected confidential trade secrets or commercial [FR Doc. 2011–3961 Filed 2–22–11; 8:45 am] with the etiologic agent for acquired property such as patentable materials, BILLING CODE 4151–AE–P immune deficiency syndrome.’’ and personal information concerning SSPs are widely considered to be an individuals associated with the grant effective way of reducing HIV applications, the disclosure of which DEPARTMENT OF HEALTH AND transmission among individuals who would constitute a clearly unwarranted HUMAN SERVICES inject illicit drugs and there is ample invasion of personal privacy. evidence that SSPs also promote entry Determination That a Demonstration Name of Committee: National Institute of and retention into treatment (Hagan, Neurological Disorders and Stroke Initial Needle Exchange Program Would be McGough, Thiede, et al., 2000, Journal Review Group, Neurological Sciences and Effective in Reducing Drug Abuse and of Substance Abuse Treatment, 19, 247– Disorders K. the Risk of Acquired Immune 252). According to research that tracks Date: March 10–11, 2011. Deficiency Syndrome Infection Among individuals in treatment over extended Time: 8 a.m. to 5 p.m. Intravenous Drug Users periods of time, most people who get Agenda: To review and evaluate grant applications. AGENCY: Office of the Secretary, into and remain in treatment can reduce or stop using illegal or dangerous drugs. Place: Melrose Hotel, 2430 Pennsylvania Department of Health and Human Avenue, NW., Washington, DC 20037. Services. In addition to promoting entry to Contact Person: Shanta Rajaram, PhD, treatment, there are studies that ACTION: Notice. Scientific Review Officer, Scientific Review document injection reductions for drug Branch, NINDS/NIH/DHHS, Neuroscience SUMMARY: The Surgeon General of the users who participate in SSPs. Hagan, et Center, 6001 Executive Blvd., Suite 3208, United States Public Health Service, al., found that, not only were new SSP MSC 9529, Bethesda, MD 20892. 301–435– VADM Regina Benjamin, M.D., M.B.A., participants five times more likely to 6033. [email protected]. has determined that a demonstration enter drug treatment than non-SSP (Catalogue of Federal Domestic Assistance needle exchange program (or more participants, former SSP participants Program Nos. 93.853, Clinical Research appropriately called syringe services were more likely to report significant Related to Neurological Disorders; 93.854, reduction in injection, to stop injecting Biological Basis Research in the program or SSP) would be effective in Neurosciences, National Institutes of Health, reducing drug abuse and the risk of altogether, and to remain in drug HHS) infection with the etiologic agent for treatment. A summary of the research Dated: February 16, 2011. acquired immune deficiency syndrome. on SSPs is available at http:// This determination reflects the scientific www.samhsa.gov/ssp. Anna P. Snouffer, evidence supporting the important The Surgeon General of the United Deputy Director, Office of Federal Advisory public health benefit of SSPs, and is States Public Health Service has Committee Policy. necessary to meet the statutory therefore determined that a [FR Doc. 2011–4014 Filed 2–22–11; 8:45 am] requirement permitting the expenditure demonstration syringe services program BILLING CODE 4140–01–P of Substance Abuse Prevention and would be effective in reducing drug Treatment (SAPT) Block Grant funds for abuse and the risk that the public will SSPs. become infected with the etiologic agent DEPARTMENT OF HEALTH AND HUMAN SERVICES FOR FURTHER INFORMATION CONTACT: for acquired immune deficiency syndrome. The Department of Health Substance Abuse and Mental Health National Institutes of Health Services Administration (SAMHSA), 1 and Human Services plans to issue Choke Cherry Road, Rockville, guidelines regarding implementation National Institute of General Medical Maryland, attention John Campbell, requirements for SSPs based on this Sciences; Notice of Closed Meeting 240–276–2891. determination. Pursuant to section 10(d) of the SUPPLEMENTARY INFORMATION: Dated: February 17, 2011. The U.S. Federal Advisory Committee Act, as Kathleen Sebelius, Department of Health and Human amended (5 U.S.C. App.), notice is Services’ Substance Abuse and Mental Secretary. hereby given of the following meeting. Health Services Administration [FR Doc. 2011–3990 Filed 2–18–11; 4:15 pm] The meeting will be closed to the administers the SAPT Block Grant BILLING CODE 4150–28–P public in accordance with the authorized in section 1921 of Title XIX, provisions set forth in sections Part B, Subpart II of the Public Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Service (PHS) Act (42 U.S.C. 300x–21). DEPARTMENT OF HEALTH AND as amended. The grant applications and Section 1931(a)(1)(F) of Title XIX, Part HUMAN SERVICES the discussions could disclose B, Subpart II of the PHS Act (42 U.S.C. National Institutes of Health confidential trade secrets or commercial 300x–31(a)(1)(F)) prohibits the property such as patentable material, expenditure of SAPT Block Grant funds National Institute of Neurological and personal information concerning to ‘‘* * * carry out any program Disorders and Stroke; Notice of Closed individuals associated with the grant prohibited by section 256(b) of the Meeting applications, the disclosure of which Health Omnibus Programs Extension would constitute a clearly unwarranted Act of 1988’’ (42 U.S.C. 300ee–5). Pursuant to section 10(d) of the invasion of personal privacy. Section 256(b) prohibits the use of Federal Advisory Committee Act, as ‘‘* * * funds provided under this Act or amended (5 U.S.C. App.), notice is Name of Committee: National Institute of an amendment made by this Act…to General Medical Sciences Special Emphasis hereby given of the following meeting. Panel, PSI Biology Meeting. provide individuals with hypodermic The meeting will be closed to the Date: March 11, 2011. needles or syringes * * * unless the public in accordance with the Time: 1 p.m. to 5 p.m. Surgeon General of the Public Health provisions set forth in sections Agenda: To review and evaluate grant Service determines that a demonstration 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications.

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Place: National Institutes of Health, (Catalogue of Federal Domestic Place: National Institutes of Health, Two Natcher Building, 45 Center Drive, Room Assistance Program Nos. 93.375, Democracy Plaza, 6707 Democracy 3AN12B, Bethesda, MD 20892 (Telephone Minority Biomedical Research Support; Boulevard, Bethesda, MD 20892 (Telephone Conference Call). 93.821, Cell Biology and Biophysics Conference Call). Contact Person: Margaret J. Weidman, PhD, Contact Person: Paul A. Rushing, Ph.D., Scientific Review Officer, Office of Scientific Research; 93.859, Pharmacology, Scientific Review Officer, Review Branch, Review, National Institute of General Medical Physiology, and Biological Chemistry DEA, NIDDK, National Institutes of Health, Sciences, National Institutes of Health, 45 Research; 93.862, Genetics and Room 747, 6707 Democracy Boulevard, Center Drive, Room 3AN18B, Bethesda, MD Developmental Biology Research; 93.88, Bethesda, MD 20892–5452, (301) 594–8895, 20892, 301–594–3663, Minority Access to Research Careers; [email protected]. [email protected]. 93.96, Special Minority Initiatives, Name of Committee: National Institute of (Catalogue of Federal Domestic Assistance National Institutes of Health, HHS) Diabetes and Digestive and Kidney Diseases Special Emphasis Panel; Urology Clinical Program Nos. 93.375, Minority Biomedical Dated: February 15, 2011. Research Support; 93.821, Cell Biology and Trials. Biophysics Research; 93.859, Pharmacology, Jennifer Spaeth, Date: March 30, 2011. Physiology, and Biological Chemistry Director, Office of Federal Advisory Time: 2:30 p.m. to 3:30 p.m. Research; 93.862, Genetics and Committee Policy. Agenda: To review and evaluate grant Developmental Biology Research; 93.88, [FR Doc. 2011–4016 Filed 2–22–11; 8:45 am] applications, Place: National Institutes of Health, Two Minority Access to Research Careers; 93.96, BILLING CODE 4140–01–P Special Minority Initiatives, National Democracy Plaza, 6707 Democracy Institutes of Health, HHS) Boulevard, Bethesda, MD 20892 (Telephone Conference Call). Dated: February 15, 2011. DEPARTMENT OF HEALTH AND Contact Person: Paul A. Rushing, Ph.D., Jennifer Spaeth, HUMAN SERVICES Scientific Review Officer, Review Branch, Director, Office of Federal Advisory DEA, NIDDK, National Institutes of Health, Committee Policy. National Institutes of Health Room 747, 6707 Democracy Boulevard, Bethesda, MD 20892–5452, (301) 594–8895, [FR Doc. 2011–4015 Filed 2–22–11; 8:45 am] National Institute of Diabetes and [email protected]. BILLING CODE 4140–01–P Digestive and Kidney Diseases; Notice Name of Committee: National Institute of of Closed Meetings Diabetes and Digestive and Kidney Diseases Special Emphasis Panel; Hemoglobinopathies DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the Program Projects. HUMAN SERVICES Federal Advisory Committee Act, as Date: April 7, 2011. amended (5 U.S.C. App.), notice is Time: 1 p.m. to 3 p.m. National Institutes of Health hereby given of the following meetings. Agenda: To review and evaluate grant The meetings will be closed to the applications. National Institute of General Medical public in accordance with the Place: National Institutes of Health, Two Sciences; Notice of Closed Meeting provisions set forth in sections Democracy Plaza, 6707 Democracy 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Boulevard, Bethesda, MD 20892 (Telephone Pursuant to section 10(d) of the Conference Call). Federal Advisory Committee Act, as as amended. The grant applications and Contact Person: Paul A. Rushing, Ph.D., amended (5 U.S.C. App.), notice is the discussions could disclose Scientific Review Officer, Review Branch, hereby given of the following meeting. confidential trade secrets or commercial DEA, NIDDK, National Institutes of Health, The meeting will be closed to the property such as patentable material, Room 747, 6707 Democracy Boulevard, public in accordance with the and personal information concerning Bethesda, MD 20892–5452, (301) 594–8895, provisions set forth in sections individuals associated with the grant [email protected]. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., applications, the disclosure of which (Catalogue of Federal Domestic Assistance as amended. The grant applications and would constitute a clearly unwarranted Program Nos. 93.847, Diabetes, the discussions could disclose invasion of personal privacy. Endocrinology and Metabolic Research; 93.848, Digestive Diseases and Nutrition confidential trade secrets or commercial Name of Committee: National Institute of Research; 93.849, Kidney Diseases, Urology property such as patentable material, Diabetes and Digestive and Kidney Diseases and Hematology Research, National Institutes and personal information concerning Special Emphasis Panel; Chronic Pelvic Pain of Health, HHS) Clinical Study. individuals associated with the grant Dated: February 16, 2011. applications, the disclosure of which Date: March 28, 2011. Jennifer S. Spaeth, would constitute a clearly unwarranted Time: 2:30 p.m. to 3:30 p.m. Agenda: To review and evaluate grant invasion of personal privacy. Director, Office of Federal Advisory applications. Committee Policy. Place: National Institutes of Health, Two Name of Committee: National Institute of [FR Doc. 2011–4018 Filed 2–22–11; 8:45 am] General Medical Sciences Special Emphasis Democracy Plaza, 6707 Democracy Panel; Research Centers in Trauma, Burn and Boulevard, Bethesda, MD 20892 (Telephone BILLING CODE 4140–01–P Perioperative Injury. Conference Call). Date: March 17, 2011. Contact Person: Paul A. Rushing, Ph.D., Time: 1 p.m. to 4 p.m. Scientific Review Officer, Review Branch, DEPARTMENT OF HEALTH AND Agenda: To review and evaluate grant DEA, NIDDK, National Institutes of Health, HUMAN SERVICES applications. Room 747, 6707 Democracy Boulevard, Place: National Institutes of Health, Bethesda, MD 20892–5452, (301) 594–8895, National Institutes of Health Natcher Building, 45 Center Drive, Room [email protected]. 3AN12B, Bethesda, MD 20892 (Telephone Name of Committee: National Institute of Center for Scientific Review; Amended Conference Call). Diabetes and Digestive and Kidney Diseases Notice of Meeting Contact Person: Brian R. Pike, PhD, Special Emphasis Panel; Ulcerative Colitis Scientific Review Officer, Office of Scientific Clinical Trials. Notice is hereby given of a change in Review, National Institute of General Medical Date: March 29, 2011. the meeting of the Center for Scientific Sciences, National Institutes of Health, 45 Time: 3 p.m. to 4 p.m. Review Special Emphasis Panel, March Center Drive, Room 3AN18, Bethesda, MD Agenda: To review and evaluate grant 2, 2011, 8 a.m. to March 3, 2011, 5 p.m., 20892, 301–594–3907, [email protected]. applications, National Institutes of Health, 6701

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Rockledge Drive, Bethesda, MD, 20892 Boulevard, Rockville, MD 20852. (Telephone Agenda: An overview of the organization which was published in the Federal Conference Call.) and research in the Laboratory of Molecular Register on January 28, 2011, 76 FR Contact Person: William C. Benzing, PhD, Carcinogenesis. 5182–5183. Scientific Review Officer, Scientific Review Place: Doubletree Guest Suites, 2515 The meeting title has been changed to Branch, Division of Extramural Research, Meridian Parkway, Research Triangle Park, NINDS/NIH/DHHS/Neuroscience Center, NC 27713. ‘‘PAR: Collaboration with NCBCs’’. The 6001 Executive Boulevard, Suite 3204, MSC Closed: March 21, 2011, 11:50 a.m. to 12:35 meeting is closed to the public. 9529, Bethesda, MD 20892. 301–496–0660. p.m. Dated: February 16, 2011. [email protected]. Agenda: To review and evaluate Jennifer S. Spaeth, (Catalogue of Federal Domestic Assistance programmatic and personnel issues. Program Nos. 93.853, Clinical Research Place: Doubletree Guest Suites, 2515 Director, Office of Federal Advisory Meridian Parkway, Research Triangle Park, Committee Policy. Related to Neurological Disorders; 93.854, Biological Basis Research in the NC 27713. [FR Doc. 2011–4039 Filed 2–22–11; 8:45 am] Neurosciences, National Institutes of Health, Open: March 21, 2011, 1:30 p.m. to 3:10 BILLING CODE 4140–01–P HHS) p.m. Agenda: An overview of the organization Dated: February 16, 2011. and research in the Laboratory of Molecular DEPARTMENT OF HEALTH AND Jennifer S. Spaeth, Carcinogenesis. HUMAN SERVICES Director, Office of Federal Advisory Place: Doubletree Guest Suites, 2515 Committee Policy. Meridian Parkway, Research Triangle Park, National Institutes of Health [FR Doc. 2011–4035 Filed 2–22–11; 8:45 am] NC 27713. Closed: March 21, 2011, 3:10 p.m. to 3:40 BILLING CODE 4140–01–P National Institute of Neurological p.m. Disorders and Stroke; Notice of Closed Agenda: To review and evaluate Meetings programmatic and personnel issues. DEPARTMENT OF HEALTH AND Place: Doubletree Guest Suites, 2515 Pursuant to section 10(d) of the HUMAN SERVICES Meridian Parkway, Research Triangle Park, Federal Advisory Committee Act, as NC 27713. National Institutes of Health amended (5 U.S.C. App.), notice is Open: March 21, 2011, 3:40 p.m. to 5:30 p.m. hereby given of the following meetings. National Institute of Environmental Agenda: Scientific Presentations. The meetings will be closed to the Health Sciences; Notice of Meeting Place: Doubletree Guest Suites, 2515 public in accordance with the Meridian Parkway, Research Triangle Park, provisions set forth in sections Pursuant to section 10(d) of the NC 27713. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as Closed: March 21, 2011, 5:30 p.m. to 10 as amended. The grant applications and amended (5 U.S.C. App.), notice is p.m. the discussions could disclose hereby given of a meeting of the Board Agenda: To review and evaluate confidential trade secrets or commercial of Scientific Counselors, NIEHS. programmatic and personnel issues. property such as patentable materials, The meeting will be open to the Place: Doubletree Guest Suites, 2515 public as indicated below, with Meridian Parkway, Research Triangle Park, and personal information concerning NC 27713. individuals associated with the grant attendance limited to space available. Open: March 22, 2011, 8 a.m. to 10:30 a.m. applications, the disclosure of which Individuals who plan to attend and Agenda: An overview of the organization would constitute a clearly unwarranted need special assistance, such as sign and research in the Laboratory of Molecular invasion of personal privacy. language interpretation or other Carcinogenesis. Place: Doubletree Guest Suites, 2515 Name of Committee: National Institute of reasonable accommodations, should Neurological Disorders and Stroke Special notify the Contact Person listed below Meridian Parkway, Research Triangle Park, Emphasis Panel, Neural Development and in advance of the meeting. NC 27713. Genetics of Zebrafish. The meeting will be closed to the Closed: March 22, 2011, 10:30 a.m. to Date: February 25, 2011. public as indicated below in accordance Adjournment. Time: 1 p.m. to 5 p.m. with the provisions set forth in section Agenda: To review and evaluate Agenda: To review and evaluate grant programmatic and personnel issues. 552b(c)(6), Title 5 U.S.C., as amended Place: Doubletree Guest Suites, 2515 applications. for the review, discussion, and Place: National Institutes of Health, Meridian Parkway, Research Triangle Park, Neuroscience Center, 6001 Executive evaluation of individual intramural NC 27713. Boulevard, Rockville, MD 20852. (Telephone programs and projects conducted by the Contact Person: William T Schrader, PhD, Conference Call.) National Institute of Environmental Deputy Scientific Director, Office of the Contact Person: Phillip F. Wiethorn, Health Sciences, including Scientific Director, National Institute of Scientific Review Officer, DHHS/NIH/ consideration of personnel Environmental Health Sciences, 111 T.W. NINDS/DER/SRB, 6001 Executive Boulevard; qualifications and performance, and the Alexander Drive, Research Triangle Park, NC MSC 9529, Neuroscience Center; Room 3203, competence of individual investigators, 27709. (919) 541–3433. [email protected]. Bethesda, MD 20892–9529. 301–496–5388. the disclosure of which would [email protected]. Any interested person may file written constitute a clearly unwarranted This notice is being published less than 15 comments with the committee by forwarding days prior to the meeting due to the timing invasion of personal privacy. the statement to the Contact Person listed on limitations imposed by the review and Name of Committee: Board of Scientific this notice. The statement should include the funding cycle. Counselors, NIEHS. name, address, telephone number and when Name of Committee: National Institute of Date: March 20–22, 2011. applicable, the business or professional Neurological Disorders and Stroke Special Closed: March 20, 2011, 7 p.m. to 10 p.m. affiliation of the interested person. Emphasis Panel, Specials Review Panel. Agenda: To review and evaluate (Catalogue of Federal Domestic Assistance Date: March 24, 2011. programmatic and personnel issues. Program Nos. 93.115, Biometry and Risk Time: 9 a.m. to 5 p.m. Place: Doubletree Guest Suites, 2515 Estimation—Health Risks from Agenda: To review and evaluate grant Meridian Parkway, Research Triangle Park, Environmental Exposures; 93.142, NIEHS applications. NC 27713. Hazardous Waste Worker Health and Safety Place: National Institutes of Health, Open: March 21, 2011, 8:30 a.m. to 11:50 Training; 93.143, NIEHS Superfund Neuroscience Center, 6001 Executive a.m. Hazardous Substances—Basic Research and

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Education; 93.894, Resources and Manpower DEPARTMENT OF HEALTH AND provisions set forth in sections Development in the Environmental Health HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Sciences; 93.113, Biological Response to as amended. The grant applications and Environmental Health Hazards; 93.114, National Institutes of Health the discussions could disclose Applied Toxicological Research and Testing, confidential trade secrets or commercial National Institutes of Health, HHS) National Institute on Deafness and property such as patentable material, Other Communication Disorders; and personal information concerning Dated: February 16, 2011. Notice of Closed Meeting Jennifer S. Spaeth, individuals associated with the grant Pursuant to section 10(d) of the applications, the disclosure of which Director, Office of Federal Advisory would constitute a clearly unwarranted Committee Policy. Federal Advisory Committee Act, as invasion of personal privacy. [FR Doc. 2011–4033 Filed 2–22–11; 8:45 am] amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board Name of Committee: Center for Scientific BILLING CODE 4140–01–P of Scientific Counselors, NIDCD. Review Special Emphasis Panel, Disorders in The meeting will be closed to the Brain, Metabolism and Aging. public as indicated below in accordance DEPARTMENT OF HEALTH AND Date: March 4, 2011. with the provisions set forth in section HUMAN SERVICES Time: 8 a.m. to 5 p.m. 552b(c)(6), Title 5 U.S.C., as amended Agenda: To review and evaluate grant National Institutes of Health for the review, discussion, and applications. evaluation of individual intramural Place: National Institutes of Health, 6701 National Eye Institute; Notice of Closed programs and projects conducted by the Rockledge Drive, Bethesda, MD 20892. Meeting National Institute on Deafness and (Virtual Meeting.) Other Communication Disorders, Contact Person: Pat Manos, Ph.D., Pursuant to section 10(d) of the including consideration of personnel Scientific Review Officer, Center for Federal Advisory Committee Act, as qualifications and performance, and the Scientific Review, National Institutes of amended (5 U.S.C. App.), notice is competence of individual investigators, Health, 6701 Rockledge Drive, Room 5200, hereby given of the following meetings. the disclosure of which would MSC 7846, Bethesda, MD 20892. 301–408– constitute a clearly unwarranted 9866. [email protected]. The meeting will be closed to the invasion of personal privacy. This notice is being published less than 15 public in accordance with the days prior to the meeting due to the timing Name of Committee: Board of Scientific provisions set forth in sections Counselors, NIDCD. limitations imposed by the review and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: March 24, 2011. funding cycle. as amended. The grant applications and Time: 1 p.m. to 2 p.m. Name of Committee: Center for Scientific the discussions could disclose Agenda: To review and evaluate personal Review Special Emphasis Panel Fellowship: confidential trade secrets or commercial qualifications and performance, and Chemical and Bioanalytical Sciences. property such as patentable material, competence of individual investigators. Date: March 10, 2011. and personal information concerning Place: National Institutes of Health, 5 Time: 8 a.m. to 6 p.m. Research Court, Rockville, MD 20852. individuals associated with the grant Agenda: To review and evaluate grant (Telephone Conference Call.) applications. applications, the disclosure of which Contact Person: Andrew J. Griffith, PhD, Place: Embassy Suites Hotel at the Chevy would constitute a clearly unwarranted MD, Director, Division of Intramural Chase Pavilion, 4300 Military Road, NW., invasion of personal privacy. Research, National Institute on Deafness and Other Communication Disorders, 5 Research Washington, DC 20015. Name of Committee: National Eye Institute Court, Room 1A13, Rockville, MD 20850. Contact Person: Sergei Ruvinov, Ph.D., Special Emphasis Panel, NEI Clinical 301–496–1960. [email protected]. Scientific Review Officer, Center for Applications I. (Catalogue of Federal Domestic Assistance Scientific Review, National Institutes of Date: March 10, 2011. Program Nos. 93.173, Biological Research Health, 6701 Rockledge Drive, Room 4158, Time: 10:30 a.m. to 12 p.m. Related to Deafness and Communicative MSC 7806, Bethesda, MD 20892. 301–435– Agenda: To review and evaluate Disorders, National Institutes of Health, HHS) 1180. [email protected]. cooperative agreement applications. Name of Committee: Center for Scientific Dated: February 16, 2011. Place: National Eye Institute, 5635 Fishers Review Special Emphasis Panel, Fellowship: Jennifer S. Spaeth, Lane, Rockville, MD 20852. (Telephone Oncological Sciences. Conference Call.) Director, Office of Federal Advisory Date: March 23–24, 2011. Committee Policy. Contact Person: Anne E Schaffner, PhD, Time: 8 a.m. to 6 p.m. Chief, Scientific Review Branch, Division of [FR Doc. 2011–4026 Filed 2–22–11; 8:45 am] Agenda: To review and evaluate grant Extramural Research, National Eye Institute, BILLING CODE 4140–01–P applications. National Institutes of Health, 5635 Fishers Place: The Melrose Hotel, 2430 Lane, Suite 1300, MSC 9300, 301–451–2020. Pennsylvania Avenue, NW., Washington, DC [email protected]. DEPARTMENT OF HEALTH AND 20037. HUMAN SERVICES (Catalogue of Federal Domestic Assistance Contact Person: Michael A Marino, Ph.D., Scientific Review Officer, Center for Program Nos. 93.867, Vision Research, National Institutes of Health National Institutes of Health, HHS) Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6152, Center for Scientific Review; Notice of Dated: February 16, 2011. MSC 7892, Bethesda, MD 20892. (301) 435– Closed Meetings Jennifer S. Spaeth, 0601. [email protected]. Director, Office of Federal Advisory Pursuant to section 10(d) of the (Catalogue of Federal Domestic Assistance Committee Policy. Federal Advisory Committee Act, as Program Nos. 93.306, Comparative Medicine; [FR Doc. 2011–4028 Filed 2–22–11; 8:45 am] amended (5 U.S.C. App.), notice is 93.333, Clinical Research, 93.306, 93.333, BILLING CODE 4140–01–P hereby given of the following meetings. 93.337, 93.393–93.396, 93.837–93.844, The meetings will be closed to the 93.846–93.878, 93.892, 93.893, National public in accordance with the Institutes of Health, HHS)

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Dated: February 16, 2011. Bethesda, MD 20892–5452, 301–594–2242, Contact Person: Thomas A. Tatham, PhD, Jennifer S. Spaeth, [email protected]. Scientific Review Officer, Review Branch, Name of Committee: National Institute of DEA, NIDDK, National Institutes of Health, Director, Office of Federal Advisory Diabetes and Digestive and Kidney Diseases Room 760, 6707 Democracy Boulevard, Committee Policy. Special Emphasis Panel, Nutrition and Bethesda, MD 20892–5452. (301) 594–3993. [FR Doc. 2011–4023 Filed 2–22–11; 8:45 am] Metabolism Program Project. [email protected]. BILLING CODE 4140–01–P Date: March 23, 2011. Name of Committee: National Institute of Time: 12:30 p.m. to 4 p.m. Diabetes and Digestive and Kidney Diseases Agenda: To review and evaluate grant Special Emphasis Panel, Biomarkers of Liver DEPARTMENT OF HEALTH AND applications. Regeneration. HUMAN SERVICES Place: National Institutes of Health, Two Date: March 24, 2011. Democracy Plaza, 6707 Democracy Time: 4 p.m. to 5:45 p.m. National Institutes of Health Boulevard, Bethesda, MD 20892 (Telephone Agenda: To review and evaluate grant Conference Call). applications. National Institute of Diabetes and Contact Person: Lakshmanan Sankaran, Place: National Institutes of Health, Two Ph.D., Scientific Review Officer, Review Democracy Plaza, 6707 Democracy Digestive and Kidney Diseases; Notice Branch, DEA, NIDDK, National Institutes of of Closed Meetings Boulevard, Bethesda, MD 20892. (Telephone Health, Room 755, 6707 Democracy Conference Call.) Pursuant to section 10(d) of the Boulevard, Bethesda, MD 20892–5452, (301) Contact Person: Maria E. Davila-Bloom, 594–7799, [email protected]. PhD, Scientific Review Officer, Review Federal Advisory Committee Act, as (Catalogue of Federal Domestic Assistance amended (5 U.S.C. App.), notice is Branch, DEA, NIDDK, National Institutes of Program Nos. 93.847, Diabetes, Health, Room 758, 6707 Democracy hereby given of the following meetings. Endocrinology and Metabolic Research; Boulevard, Bethesda, MD 20892–5452. (301) 93.848, Digestive Diseases and Nutrition The meetings will be closed to the 594–7637. davila- Research; 93.849, Kidney Diseases, Urology public in accordance with the [email protected]. provisions set forth in sections and Hematology Research, National Institutes of Health, HHS) Name of Committee: National Institute of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Diabetes and Digestive and Kidney Diseases as amended. The grant applications and Dated: February 16, 2011. Special Emphasis Panel, DDK–C Conflicts. the discussions could disclose Jennifer S. Spaeth, Date: April 5, 2011. confidential trade secrets or commercial Director, Office of Federal Advisory Time: 1 p.m. to 3 p.m. property such as patentable material, Committee Policy. Agenda: To review and evaluate grant and personal information concerning [FR Doc. 2011–4020 Filed 2–22–11; 8:45 am] applications. Place: National Institutes of Health, Two individuals associated with the grant BILLING CODE 4140–01–P Democracy Plaza, 6707 Democracy applications, the disclosure of which Boulevard, Bethesda, MD 20892. (Telephone would constitute a clearly unwarranted Conference Call.) invasion of personal privacy. DEPARTMENT OF HEALTH AND Contact Person: Thomas A. Tatham, PhD, HUMAN SERVICES Name of Committee: National Institute of Scientific Review Officer, Review Branch, DEA, NIDDK, National Institutes of Health, Diabetes and Digestive and Kidney Diseases National Institutes of Health Special Emphasis Panel, NIDDK SEP. Room 760, 6707 Democracy Boulevard, Bethesda, MD 20892–5452. (301) 594–3993. Date: March 10, 2011. National Institute of Diabetes and Time: 1 p.m. to 3 p.m. [email protected]. Agenda: To review and evaluate grant Digestive and Kidney Diseases; Notice Name of Committee: National Institute of applications. of Closed Meetings Diabetes and Digestive and Kidney Diseases Special Emphasis Panel, Program Project on Place: National Institutes of Health, Two Pursuant to section 10(d) of the Democracy Plaza, 6707 Democracy Liver Ischemia. Boulevard, Bethesda, MD 20892 (Telephone Federal Advisory Committee Act, as Date: April 7, 2011. Conference Call). amended (5 U.S.C. App.), notice is Time: 1 p.m. to 6 p.m. Contact Person: Xiaodu Guo, MD, Ph.D., hereby given of the following meetings. Agenda: To review and evaluate grant Scientific Review Officer, Review Branch, The meetings will be closed to the applications. DEA, NIDDK, National Institutes of Health, public in accordance with the Place: National Institutes of Health, Two Room 761, 6707 Democracy Boulevard, provisions set forth in sections Democracy Plaza, 6707 Democracy Bethesda, MD 20892–5452, (301) 594–4719, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Boulevard, Bethesda, MD 20892. (Telephone [email protected]. as amended. The grant applications and Conference Call.) This notice is being published less than 15 the discussions could disclose Contact Person: Maria E. Davila-Bloom, days prior to the meeting due to the timing PhD, Scientific Review Officer, Review confidential trade secrets or commercial Branch, DEA, NIDDK, National Institutes of limitations imposed by the review and property such as patentable material, funding cycle. Health, Room 758, 6707 Democracy and personal information concerning Boulevard, Bethesda, MD 20892–5452. (301) Name of Committee: National Institute of individuals associated with the grant 594–7637. davila- Diabetes and Digestive and Kidney Diseases applications, the disclosure of which [email protected]. Special Emphasis Panel, PAR09–247 Ancillary Clinical Studies of Interest to the would constitute a clearly unwarranted (Catalogue of Federal Domestic Assistance NIDDK: Gastroparesis. invasion of personal privacy. Program Nos. 93.847, Diabetes, Endocrinology and Metabolic Research; Date: March 16, 2011. Name of Committee: National Institute of 93.848, Digestive Diseases and Nutrition Time: 11 a.m. to 12:30 p.m. Diabetes and Digestive and Kidney Diseases Research; 93.849, Kidney Diseases, Urology Agenda: To review and evaluate grant Special Emphasis Panel, Genetic and applications. Metabolic Fingerprints of Coactivators. and Hematology Research, National Institutes Place: National Institutes of Health, Two Date: March 23, 2011. of Health, HHS) Democracy Plaza, 6707 Democracy Time: 11 a.m. to 2 p.m. Dated: February 16, 2011. Boulevard, Bethesda, MD 20892 (Telephone Agenda: To review and evaluate grant Jennifer S. Spaeth, Conference Call). applications. Director, Office of Federal Advisory Contact Person: Ann A Jerkins, Ph.D., Place: National Institutes of Health, Two Committee Policy. Scientific Review Officer, Review Branch, Democracy Plaza, 6707 Democracy DEA, NIDDK, National Institutes of Health, Boulevard, Bethesda, MD 20892. (Telephone [FR Doc. 2011–4019 Filed 2–22–11; 8:45 am] Room 759, 6707 Democracy Boulevard, Conference Call.) BILLING CODE 4140–01–P

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DEPARTMENT OF HEALTH AND DEPARTMENT OF HOMELAND ACTION: Notice. HUMAN SERVICES SECURITY SUMMARY: This is a notice of the National Institutes of Health Federal Emergency Management Presidential declaration of a major Agency disaster for the State of Utah (FEMA– National Institute of General Medical 1955–DR), dated February 11, 2011, and [Internal Agency Docket No. FEMA–3316– related determinations. Sciences; Notice of Closed Meeting EM; Docket ID FEMA–2011–0001] DATES: Effective Date: February 11, Pursuant to section 10(d) of the Oklahoma; Amendment No. 1 to Notice 2011. Federal Advisory Committee Act, as of an Emergency Declaration FOR FURTHER INFORMATION CONTACT: amended (5 U.S.C. App.), notice is Peggy Miller, Office of Response and hereby given of the following meeting. AGENCY: Federal Emergency Management Agency, DHS. Recovery, Federal Emergency The meeting will be closed to the Management Agency, 500 C Street, SW., ACTION: Notice. public in accordance with the Washington, DC 20472, (202) 646–3886. provisions set forth in sections SUMMARY: This notice amends the notice SUPPLEMENTARY INFORMATION: Notice is 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., of an emergency declaration for the hereby given that, in a letter dated as amended. The grant applications and State of Oklahoma (FEMA–3316–EM), February 11, 2011, the President issued the discussions could disclose dated February 2, 2011, and related a major disaster declaration under the confidential trade secrets or commercial determinations. authority of the Robert T. Stafford property such as patentable material, DATES: Effective Date: February 5, 2011. Disaster Relief and Emergency and personal information concerning Assistance Act, 42 U.S.C. 5121 et seq. FOR FURTHER INFORMATION CONTACT: (the ‘‘Stafford Act’’), as follows: individuals associated with the grant Peggy Miller, Office of Response and applications, the disclosure of which Recovery, Federal Emergency I have determined that the damage in would constitute a clearly unwarranted Management Agency, 500 C Street, SW., certain areas of the State of Utah resulting invasion of personal privacy. Washington, DC 20472, (202) 646–3886. from severe winter storms and flooding during the period of December 20–24, 2010, Name of Committee: National Institute of SUPPLEMENTARY INFORMATION: Notice is is of sufficient severity and magnitude to General Medical Sciences Initial Review hereby given that the incident period for warrant a major disaster declaration under Group, Minority Programs Review this emergency is closed effective the Robert T. Stafford Disaster Relief and Subcommittee B. February 5, 2011. Emergency Assistance Act, 42 U.S.C. 5121 et Date: March 10, 2011. seq. (the ‘‘Stafford Act’’). Therefore, I declare The following Catalog of Federal Domestic Time: 1 p.m. to 5 p.m. that such a major disaster exists in the State Assistance Numbers (CFDA) are to be used of Utah. Agenda: To review and evaluate grant for reporting and drawing funds: 97.030, applications. In order to provide Federal assistance, you Community Disaster Loans; 97.031, Cora are hereby authorized to allocate from funds Place: National Institutes of Health, Brown Fund; 97.032, Crisis Counseling; available for these purposes such amounts as Natcher Building, 45 Center Drive, Room 97.033, Disaster Legal Services; 97.034, you find necessary for Federal disaster 3AN18, Bethesda, MD 20814 (Telephone Disaster Unemployment Assistance (DUA); assistance and administrative expenses. Conference Call). 97.046, Fire Management Assistance Grant; You are authorized to provide assistance Contact Person: Rebecca H. Johnson, PhD, 97.048, Disaster Housing Assistance to for debris removal and emergency protective Scientific Review Officer, Office of Scientific Individuals and Households In Presidentially measures under the Public Assistance Review, National Institute of General Medical Declared Disaster Areas; 97.049, program in the designated areas. Consistent Presidentially Declared Disaster Assistance— Sciences, National Institutes of Health, with the requirement that Federal assistance Disaster Housing Operations for Individuals Natcher Building, Room 3AN18C, Bethesda, is supplemental, any Federal funds provided and Households; 97.050, Presidentially under the Stafford Act for Public Assistance MD 20892, 301–594–2771, Declared Disaster Assistance to Individuals [email protected]. will be limited to 75 percent of the total and Households—Other Needs; 97.036, eligible costs. Additional forms of assistance (Catalogue of Federal Domestic Assistance Disaster Grants—Public Assistance may be added after the State has adopted an Program Nos. 93.375, Minority Biomedical (Presidentially Declared Disasters); 97.039, approved Standard State Mitigation Plan. Research Support; 93.821, Cell Biology and Hazard Mitigation Grant. Further, you are authorized to make Biophysics Research; 93.859, Pharmacology, changes to this declaration for the approved Physiology, and Biological Chemistry W. Craig Fugate, assistance to the extent allowable under the Research; 93.862, Genetics and Administrator, Federal Emergency Stafford Act. Management Agency. Developmental Biology Research; 93.88, The Federal Emergency Management Minority Access to Research Careers; 93.96, [FR Doc. 2011–4049 Filed 2–22–11; 8:45 am] Agency (FEMA) hereby gives notice that Special Minority Initiatives, National BILLING CODE 9111–23–P pursuant to the authority vested in the Institutes of Health, HHS) Administrator, under Executive Order Dated: February 15, 2011. DEPARTMENT OF HOMELAND 12148, as amended, William J. Doran III, Jennifer Spaeth, SECURITY of FEMA is appointed to act as the Director, Office of Federal Advisory Federal Coordinating Officer for this Committee Policy. Federal Emergency Management major disaster. [FR Doc. 2011–4017 Filed 2–22–11; 8:45 am] Agency The following areas of the State of Utah have been designated as adversely BILLING CODE 4140–01–P [Internal Agency Docket No. FEMA–1955– affected by this major disaster: DR; Docket ID FEMA–2011–0001] Kane and Washington Counties for debris Utah; Major Disaster and Related removal and emergency protective measures Determinations (Categories A and B) under the Public Assistance program. AGENCY: Federal Emergency (The following Catalog of Federal Domestic Management Agency, DHS. Assistance Numbers (CFDA) are to be used

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for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora FOR FURTHER INFORMATION CONTACT: Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; Arlette Mussington, Office of Policy, Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Programs and Legislative Initiatives, 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); PIH, Department of Housing and Urban Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Development, 451 Seventh Street, SW., 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially (L’Enfant Plaza, Room 2206), Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Washington, DC 20410; telephone: 202– Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance— 402–4109. (This is not a toll-free Presidentially Declared Disaster Assistance— Disaster Housing Operations for Individuals number) Disaster Housing Operations for Individuals and Households; 97.050 Presidentially SUPPLEMENTARY INFORMATION: The and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Department will submit the proposed and Households—Other Needs; 97.036, Disaster Grants—Public Assistance information collection to OMB for Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, review, as required by the Paperwork (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. Reduction Act of 1995 (44 U.S.C. Hazard Mitigation Grant.) Chapter 35, as amended). This Notice is W. Craig Fugate, W. Craig Fugate, soliciting comments from members of Administrator, Federal Emergency the public and affected agencies Administrator, Federal Emergency Management Agency. Management Agency. concerning the revised collection of [FR Doc. 2011–4050 Filed 2–22–11; 8:45 am] information to: (1) Evaluate whether the [FR Doc. 2011–4047 Filed 2–22–11; 8:45 am] BILLING CODE 9111–23–P proposed collection of information is BILLING CODE 9111–23–P necessary for the proper performance of the functions of the agency, including DEPARTMENT OF HOUSING AND DEPARTMENT OF HOMELAND whether the information will have URBAN DEVELOPMENT SECURITY practical utility; (2) evaluate the [Docket No. FR–5487–N–03] accuracy of the agency’s estimate of the Federal Emergency Management burden of the proposed collection of Agency Notice of Proposed Information information; (3) enhance the quality, Collection for Public Comment Public utility, and clarity of the information to [Internal Agency Docket No. FEMA–1954– be collected; and (4) minimize the DR; Docket ID FEMA–2011–0001] Housing Assessment System Appeals, Technical Reviews and Database burden of the collection of information New Jersey; Amendment No. 1 to Adjustments on those who are to respond, including Notice of a Major Disaster Declaration through the use of appropriate AGENCY: Office of the Assistant automated collection techniques or AGENCY: Federal Emergency Secretary for Public and Indian other forms of information technology, Management Agency, DHS. Housing, HUD. e.g., permitting electronic submission of ACTION: Notice. ACTION: Notice. responses. This Notice also lists the following SUMMARY: This notice amends the notice SUMMARY: The proposed information collection requirement described below information: of a major disaster declaration for the Title of Proposal: Public Housing will be submitted to the Office of State of New Jersey (FEMA–1954–DR), Assessment System Appeals, Technical Management and Budget (OMB) for dated February 4, 2011, and related Reviews and Database Adjustments. review, as required by the Paperwork determinations. OMB Control Number: 2577–0257. Reduction Act. The Department is DATES: Effective Date: February 11, 1. Description of the Need for the soliciting public comments on the 2011. Information and Proposed Use: Section subject proposal. FOR FURTHER INFORMATION CONTACT: 502 of the National Affordable Housing DATES: Comments Due Date: April 25, Act of 1990, as amended by the Quality Peggy Miller, Office of Response and 2011. Recovery, Federal Emergency Housing and Work Responsibility Act of Management Agency, 500 C Street, SW., ADDRESSES: Interested persons are 1998 (QHWRA), implements section 6(j) Washington, DC 20472, (202) 646–3886. invited to submit comments regarding of the United States Housing Act of this proposal. Comments should refer to 1937 (the Act). Section 6(j) establishes SUPPLEMENTARY INFORMATION: The notice the proposal by name/or OMB Control specific assessment indicators and of a major disaster declaration for the number and should be sent to: Colette directs the Secretary to develop State of New Jersey is hereby amended Pollard, Department Reports additional indicators to assess the to include the following areas among Management Officer, Office of the Chief management performance of public those areas determined to have been Information Officer, Department of housing agencies (PHAs) in all major adversely affected by the event declared Housing and Urban Development, 451 areas of management operations. The a major disaster by the President in his 7th Street, SW., Room 4160, four Public Housing Assessment System declaration of February 4, 2011. Washington, DC 20410–5000; telephone (PHAS) indicators under the new Atlantic and Cumberland Counties for 202.402.3400, (this is not a toll-free proposed PHAS rule are: Physical Public Assistance. number) or e-mail Ms. condition; financial condition; Atlantic and Cumberland Counties for [email protected]. Persons with management operations; and Capital emergency protective measures (Category B), including snow assistance, under the Public hearing or speech impairments may Fund Program. A PHA is designated as Assistance program for any continuous 48- access this number through TTY by troubled if it fails to perform under the hour period during or proximate to the calling the toll-free Federal Information assessment indicators, or if it is unable incident period. Relay Service at (800) 877–8339. (Other to administer the program for assistance The following Catalog of Federal Domestic than the HUD USER information line from the Capital Fund Program. Assistance Numbers (CFDA) are to be used and TTY numbers, telephone numbers Pursuant to § 6(j)(2)(A)(iii) of the Act, for reporting and drawing funds: 97.030, are not toll-free.) HUD is required to establish procedures

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for a PHA to appeal its troubled Authority: Section 3506 of the Paperwork affecting agencies concerning the designation. The proposed PHAS Reduction Act of 1995, 44 U.S.C. Chapter 35, proposed collection of information to: interim rule at § 902.69 provides the as amended. (1) Evaluate whether the proposed opportunity for a PHA to appeal its Dated: November 22, 2010. collection of information is necessary troubled designation, petition for the Merrie Nichols-Dixon, for the proper performance of the removal of troubled designation, or Acting Deputy, Assistant Secretary for Office functions of the agency, including appeal its score. of Policy, Programs and Legislative Initiatives. whether the information will have The proposed PHAS interim rule at [FR Doc. 2011–4030 Filed 2–22–11; 8:45 am] practical utility; (2) Evaluate the § 902.68 affords PHAs the opportunity BILLING CODE 4210–67–P accuracy of the agency’s estimate of the to request a technical review of its burden of the proposed collection of physical condition inspection or, at information; (3) Enhance the quality, § 902.24, a database adjustment if DEPARTMENT OF HOUSING AND utility, and clarity of the information to certain conditions are present. A URBAN DEVELOPMENT be collected; and (4) Minimize the technical review of the physical burden of the collection of information condition inspection may be requested [Docket No. FR–5480–N–13] on those who are to respond; including if a PHA believes that an objectively through the use of appropriate Notice of Proposed Information automated collection techniques or verifiable and material error(s) occurred Collection: Comment Request; ‘‘eLogic in the inspection of an individual other forms of information technology, Model’’ Grant Performance Report e.g., permitting electronic submission of property. A database adjustment may be Standard requested by a PHA due to facts and responses. circumstances affecting a project which AGENCY: Office of the Chief Information This Notice also lists the following are not reflected in the physical Officer, HUD. information: condition inspection or which are Title of Proposal: ’’eLogic Model’’ ACTION: Notice of Proposed Information ’’ reflected inappropriately in the physical Grant Performance Report Standard . Collection. OMB Approval Number: 2535–0114. condition inspection. Form Number: The agency form SUMMARY: The proposed information HUD uses the data it collects from number is HUD 96010, each program program participants (PHAs) to evaluate collection requirement described below utilizing the Logic Model will have the the four individual PHAS indicators and has been submitted to the Office of same form number and the Program to determine an overall PHAS score for Management and Budget (OMB) for Name following the number to associate each PHA, and to determine the review, as required by the Paperwork the logic model to the specific program. physical condition scores for individual Reduction Act. The Department is Description of the need for the projects. The overall PHAS score soliciting public comments on the information and proposed use: The determines if a PHA’s performance is subject proposal. revised form, which is an attachment to high, standard, substandard or troubled, DATES: Comments Due Date: April 25, HUD Federal Financial Assistance including Capital Fund Program 2011. applications. HUD uses standardized troubled. PHAs may request an appeal ADDRESSES: Interested persons are points for evaluating Logic Models of its overall PHAS score, or a technical invited to submit comments regarding submitted under Rating Factor 5, review or database adjustment of their this proposal. Comments should refer to Achieving Results and Program physical condition score. These requests the proposal by name and/or OMB Evaluation for programs using the Logic are submitted by letter from the PHA to Control Number {2535–0114} and Model. The decision to standardize the HUD, and the letter includes should be sent to: Barbara Dorf, basis for rating the Logic Model resulted documentation to justify the request. Director, Office of Departmental Grants from review of submitted Logic Models HUD reviews the request and Management and Oversight, Department and rating factor narrative statements, accompanying documentation, and or Housing and Urban Development, and training sessions held with HUD makes a determination as to whether to 451 7th Street, SW., Room 3156, staff and the applicant community. By grant or deny the request based on what Washington, DC 20410 or e-mail at standardizing the rating for the Logic the PHA has submitted. These [email protected]. Model submission, HUD believes that a information collections are described in greater understanding will be gained on the proposed PHAS interim rule, with FOR FURTHER INFORMATION CONTACT: the use and relationship of the Logic thorough definitions of each request. Collette Pollard, Reports Management Model to information submitted as part The granting of an appeal, technical Officer, Department of Housing and of the Rating Factors for award. The review or database adjustment may Urban Development, 451 Seventh Street, standardization of the Logic Model change a PHA’s designation, usually to Southwest, Washington, DC 20410; submission in Rating Factor 5 highlights a higher level. e-mail [email protected]; or the relationship between the narratives Agency form numbers: None. Dorthera Yorkshire, Senior Program produced in response to the factors for Members of affected public: Public Analyst Office of Departmental Grants award, stated outputs and outcomes, housing agencies. Management and Oversight at and discrepancies or gaps that have Estimation of the total number of [email protected] for copies been found to exist in submitted Logic hours needed to prepare the information of the proposed forms and other Models. HUD also believes that the collection including number of available information. standardization will strengthen the use respondents: 1,700 respondents SUPPLEMENTARY INFORMATION: The of the Logic Model as a management annually with 1 response per Department will submit the proposed and evaluation tool. The Logic Model is respondent. Average time per response information collection to OMB for a tool that integrates program operations for each form is 5.2 hours and total review, as required by the Paperwork and program accountability. It links annual burden hours is 8,840. Reduction Act of 1995 (44 U.S.C. program operations (mission, need, Status of the proposed information Chapter 35, as amended). intervention, projected results, and collection: Revision of a currently This Notice is soliciting comments actual results), and program approved collection. from members of the public and accountability (measurement tool, data

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source, and frequency of data collection in box 8a of the SF424, Application for provided via satellite broadcast and and reporting, including personnel Federal Financial Assistance Form. If an archived on HUD’s website for repeat assigned to function). Applicants/ applicant is submitting more than one viewing. Individual Program NOFAs grantees should use it to support application for funding, the project may specify means other than the Logic program planning, monitoring, name must be completed and must be Model for capturing performance data evaluation, and other management different for each funding request made. for evaluation purposes. Applicants function HUD uses the Logic Model and DO NOT use special characters (i.e., #, should carefully read the Program its electronic version, the eLogic %, /, etc.) in a file name. NOFA to determine requirements and Model®, to capture an executive DO NOT include spaces in the file the Factors for Award which constitutes summary of the application submission name. Limit file names to not more than the basis for scoring each program in data format, which HUD uses to 50 characters (HUD strongly NOFA. evaluate the attainment of stated recommends not more than 32 Additional details about the five applicant goals and anticipated results. characters). rating factors and the maximum points HUD also uses the data for policy DO NOT convert Word files or Excel for each factor are provided in formulation. HUD encourages files into PDF format. Converting to PDF individual program NOFAs. For a applicants and those selected for award format increases file size and will make specific funding opportunity, HUD may to use the Logic Model data to monitor it more difficult to upload the modify these factors to take into account and evaluate their own progress and application and does not allow HUD to explicit program needs or statutory or effectiveness in meeting stated goals and enter data from the Excel files into a regulatory limitations. Applicants achieving results consistent with the database. should carefully read the factors for DO NOT save your logic model in program purpose. To further this award as described in the program .xlsm format. If necessary save as an objective, and in response to grantee NOFA to which they are responding. Excel 97–2003 .xls format. Using the requests, the HUD eLogic Model® .xlsm format can result in a Grants.gov e. Additional Criteria: Past contains a column that allows the virus detect error. In addition, HUD Performance. In evaluating applications grantee to input results achieved for the cannot accept and open .xlsm files. for funding, HUD will take into account reporting period, as well as Year-To- File names with spaces and special an applicant’s past performance in Date (YTD) in the reporting year tab for characters in the file name or which managing funds, including, but not each year of the award. This added field contain more than 50 characters present limited to, the ability to account for allows the grantee to review problems for HUD entering the data funds appropriately; timely use of funds performance each reporting period and electronically into our database. received either from HUD or other ‘‘ ’’ for each year of the award at a glance, Applications that do not follow the Federal, State, or local programs; timely and without having to construct a submission and quality of reports to ® naming conventions will have their report. The HUD eLogic Model also applications rejected by the Grants.gov HUD; meeting program requirements; has fields to capture the location (city, website, as the file names that violate meeting performance targets as state, and nine digit Zip Code) where these requirements are viewed as established in Logic Models approved as the majority of the activities take place, containing viruses by the system. part of the grant agreement; timelines as well as a drop-down menu to identify Grantees who submit reports that do not for completion of activities and receipt the reporting period start and end date. meet the file-naming requirements or do of promised matching or leveraged In FY2010, HUD added a drop down not complete mandatory data fields will funds; and the number of persons to be field for the reporting period, as follows: have their Logic Model reports returned served or targeted for assistance. HUD Yr1Qtr1; Yr1Qtr2; Yr1Qtr3; Yr1Qtr4; to them for correction of these issues. may consider information available Yr2Qtr5; Yr2Qtr6; Yr2Qtr7; Yr2Qtr8; For the file name of the eLogic from HUD’s records; the name check Yr3Qtr9; Yr3Qtr10; Yr3Qtr11; Yr3Qtr12; Model®, please follow the file naming review; public sources such as and Final Report. The sequential conventions and requirements above. newspapers; Inspector General or numbering of the quarters was After award, the file name for Logic Government Accountability Office determined necessary because each start Model must be the award number and reports or findings; or hotline or other and end date within a program may vary reporting period. For detailed complaints that have been proven to by grantee, so it was difficult to instructions, please see the instructions have merit. determine the actual report that was under Tab 1 of the program eLogic In evaluating past performance, HUD sent in the order that they were received Model®, form HUD96010. The reporting may elect to deduct points from the by HUD. If a grantee only reports semi periods will be specified in each of the rating score or establish threshold levels annually, it would select Yr1 Quarter 2 program NOFAs. as specified under the Factors for Award as its first reporting period and Yr1 HUD’s goal is to improve the labeling in the individual program NOFAs. Each Quarter 4 as its second semi-annual of the files to improve matching program NOFA will specify how past reporting period. If a grantee is only submitted application logic models and performance will be rated. required to report annually, it would report Logic Models, thereby improving Agency form numbers, if applicable: select Yr1Qtr4 to denote its reporting HUD’s ability to place the information HUD–96010. period. Final reports would be denoted in a database and measure the Estimation of the total number of as a final report. Each Program NOFA effectiveness of HUD programs. hours needed to prepare the information will specify the reporting requirement Factor 5, Achieving Results and collection including number of with instructions, and whether a Program Evaluation, will consist of a respondents, frequency of response, and separate final report is required in minimum of 10 points for the Logic hours of response: An estimation of the addition to any annual report. Model submission. The matrix provided total time needed to complete the form Applicants and grantees must follow the in Appendix B of this General Section is less than ten minutes; number of following requirements in completing identifies how the Logic Model will be respondents is 11,000; frequency of and naming their Logic Model files: rated in a standardized way across response is on the occasion of The applicant name in the Logic program areas using the Logic Model. application submission. The total report Model must match the applicant name Training on the rating factor will be burden is 1100 hours.

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Status of the proposed information submit comments electronically. II. Background collection: New collection of Electronic submission of comments A. Financial Condition Indicator information for HUD’s discretionary allows the commenter maximum time to Regulatory Background programs. prepare and submit a comment, ensures To reflect a shift from a PHA-wide Authority: The Paperwork Reduction Act timely receipt by HUD, and enables of 1995, 44 U.S.C. Chapter 35, as amended. HUD to make them immediately based assessment to one that is property available to the public. Comments based, HUD is revising the Financial Dated: February 16, 2011. submitted electronically through the Assessment Sub-System for public Colette Pollard, http://www.regulations.gov Web site can housing (FASS–PH) Financial Data Departmental Reports Management Officer, be viewed by other commenters and Schedule (FDS) and financial condition Office of the Chief Information Officer. interested members of the public. scoring process. Project-based [FR Doc. 2011–4032 Filed 2–22–11; 8:45 am] Commenters should follow the management is defined in 24 CFR BILLING CODE 4210–67–P instructions provided on that site to 990.115 as ‘‘the provision of property submit comments electronically. management services that is tailored to the unique needs of each property.’’ Note: To receive consideration as public DEPARTMENT OF HOUSING AND PHAs must also implement project- URBAN DEVELOPMENT comments, comments must be submitted through one of the two methods specified based budgeting and project-based [Docket No. FR–5094–N–04] above. Again, all submissions must refer to accounting, which are essential the docket number and title of the rule. components of asset management. Changes to the Public Housing Project-based accounting is critical to a Assessment System (PHAS): Financial No Facsimile Comments. Facsimile property-based assessment of financial Condition Scoring Notice (FAX) comments are not acceptable. condition, because it mandates the Public Inspection of Public submission of property-level financial AGENCY: Office of the Assistant Comments. All properly submitted data. Accordingly, PHAs will now be Secretary for Public and Indian comments and communications scored at a property level, using the Housing, HUD. submitted to HUD will be available for already designated projects as the basis ACTION: Notice. public inspection and copying between for assessment. 8 a.m. and 5 p.m. weekdays at the above HUD will assess the financial SUMMARY: This notice provides address. Due to security measures at the additional information to public condition of projects. Project financial HUD Headquarters building, an advance performance will be scored and housing agencies (PHAs) and members appointment to review the public of the public about HUD’s process for averaged across the PHA, weighted comments must be scheduled by calling according to unit count. The projects issuing scores under the financial the Regulations Division at 202–402– condition indicator of the Public within a PHA will be evaluated and 3055 (this is not a toll-free number). scored based on the project’s Housing Assessment System (PHAS). Individuals with speech or hearing This notice includes threshold values performance relative to industry impairments may access this number standards. and associated scores for each financial via TTY by calling the Federal subindicator derived from generally Information Relay Service, toll-free, at B. Comparable Scoring Systems accepted accounting principles (GAAP)- 800–877–8339. Copies of all comments The financial condition subindicators based financial information. This notice submitted are available for inspection are not unique to public housing. The updates and clarifies the audit flags and and downloading at http:// subindicators included in the financial tier classification chart. www.regulations.gov. condition indicator scoring process are DATES: Effective Date: March 25, 2011. FOR FURTHER INFORMATION CONTACT: common measurements used Comment Due Date: April 25, 2011. throughout the multifamily industry to ADDRESSES: Interested persons are Claudia Yarus, Department of Housing and Urban Development, Office of rank properties and identify the invited to submit comments on this properties that require further attention. notice to the Regulations Division, Public and Indian Housing, Real Estate Office of General Counsel, Department Assessment Center (REAC), 550 12th III. Transition to Asset Management of Housing and Urban Development, Street, SW., Suite 100, Washington, DC and Frequency of Financial Condition 451 7th Street, SW., Room 10276, 20410 at 202–475–8830 (this is not a Submissions toll-free number). Persons with hearing Washington, DC 20410–0500. The number of units in a PHA’s Low- or speech impairments may access this Communications must refer to the above Rent program and the PHAS designation number through TTY by calling the toll- docket number and title. There are two for small PHAs will determine the free Federal Information Relay Service methods for submitting public frequency of financial condition at 800–877–8339. Additional comments. All submissions must refer submissions during and after the information is available from the REAC to the above docket number and title. transition to asset management. PHAs Internet site at http://www.hud.gov/ 1. Submission of Comments by Mail. with fewer than 250 public housing offices/reac/. Comments may be submitted by mail to units will receive a PHAS assessment, the Regulations Division, Office of SUPPLEMENTARY INFORMATION: based on its PHAS designation, as General Counsel, Department of I. Purpose of This Notice follows: Housing and Urban Development, 451 (1) A small PHA that is a high 7th Street, SW., Room 10276, The purpose of this notice is to performer will receive a PHAS Washington, DC 20410–0500. provide information about the scoring assessment every 3 years; 2. Electronic Submission of process for PHAS indicator #2, financial (2) A small PHA that is a standard or Comments. Interested persons may condition, under the PHAS. The substandard performer will receive a submit comments electronically through purpose of the financial condition PHAS assessment every other year; and the Federal eRulemaking Portal at indicator is to measure the financial (3) All other small PHAs will receive http://www.regulations.gov. HUD condition of each public housing a PHAS assessment every year, strongly encourages commenters to project. including a PHA that is designated as

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troubled or Capital Fund troubled in adjusted unrestricted current assets by V. GAAP-Based Scoring Process and accordance with § 902.75. current liabilities. The purpose of this Elements of Scoring In the baseline year, every PHA will ratio is to indicate whether a project receive an overall PHAS score and in all could meet all current liabilities if they A. Points and Threshold four of the PHAS indicators: physical became immediately due and payable. A The financial condition indicator is condition; financial condition; project should have available current based on a maximum of 25 points. In management operations; and Capital resources equal to or greater than its order to receive a passing score under Fund program. This will allow a current liabilities in order to be this indicator, a project must achieve at baseline year for the small deregulated considered financially liquid. The QR is PHAs. a commonly used liquidity measure least 15 points, or 60 percent of the available points under this indicator. IV. Subindicators across the industry. Maintaining sufficient liquidity is essential for the B. Scoring Elements A. Subindicators of the Financial financial health of an individual project. Condition Indicator Subindicator #2, MENAR. This The financial condition indicator There are three subindicators that subindicator measures a project’s ability score provides an assessment of a examine the financial condition of each to operate using its net available, project’s financial condition. Under the project. The values of the three unrestricted resources without relying PHAS financial condition indicator, subindicators, derived from the FDS on additional funding. It is computed as HUD will calculate an overall score submitted by the PHA, comprise the the ratio of adjusted net available based on the unit weighted average overall financial assessment of a project. unrestricted resources to average score for each project. In order to The three subindicators of the financial monthly operating expenses. The result compute an overall financial condition condition indicator are: of this calculation shows how many score, an individual project financial months of operating expenses can be • Quick Ratio (QR); condition score is multiplied by the • covered with currently available, Months Expendable Net Assets number of units in each project to Ratio (MENAR); and unrestricted resources. • Subindicator #3, DSCR. This determine a ‘‘weighted value.’’ The sum Debt Service Coverage Ratio of the weighted values is then divided (DSCR). subindicator is a measure of a project’s ability to meet regular debt obligations. by the total number of units in a PHA’s B. Description of the Financial This subindicator is calculated by portfolio to derive the overall PHAS Condition Subindicators dividing adjusted operating income by a financial condition indicator score. The The subindicators are described as project’s annual debt service payments. three subindicator scores are produced follows: It indicates whether the project has using GAAP-based financial data Subindicator #1, QR. This generated enough income from contained in the FDS. The minimum subindicator is a liquidity measure of operations to meet annual interest and number of points (zero) and the the project’s ability to cover current principal payment on long-term debt maximum number of points (25) can be liabilities. It is measured by dividing service obligations. achieved over a range of values.

Subindicators Measurement of Points

QR ...... Liquidity ...... 12.0 MENAR ...... Adequacy of reserves ...... 11.0 DSCR ...... Capacity to cover debt ...... 2.0

Total ...... 25.0

QR points. If its MENAR is greater than 1.0 DSCR Value Points A project will receive zero points and less than 4.0, it will receive greater <1.0 ...... 0.0 when its QR is less than 1.0. If its QR than 6.6 points but less than 11.0 points, on a proportional basis. A project will ≥1.0 but <1.25 ...... 1.0 equals 1.0, it will receive 7.2 points. If ≥ receive the maximum of 11 points when 1.25 ...... 2.0 its QR is greater than 1.0 and less than No Debt Service ...... 2.0 2.0, it will receive greater than 7.2 its MENAR is equal to or greater than 4.0. points but less than 12.0 points, on a VI. Audit Adjustment proportional basis. A project will MENAR Value Points receive the maximum of 12.0 points Pursuant to § 902.30, HUD calculates a revised financial condition score after when its QR is equal to or greater than <1.0 ...... 0.0 2.0. 1.0 ...... 6.6 it receives audited financial >1.0 but <4.0 ...... >6.6 but <11.0 information. The revised financial QR Value Points ≥4.0 ...... 11.0 condition score, which is based on the audited information, can increase or <1.0 ...... 0.0 DSCR decrease the initial PHA-wide score that 1.0 ...... 7.2 was based on the unaudited financial >1.0 but <2.0 ...... >7.2 but <12.0 A project will receive zero points information. The audited score reflects ≥2.0 ...... 12.0 when its DSCR ratio is less than 1.0. If two types of adjustments. The first type its DSCR equals at least 1.0 but less than is based on audit flags and reports the MENAR 1.25, it will receive 1 point. A project result from the audit itself. Significant A project will receive zero points will receive the maximum of 2.0 points deficiencies and material weaknesses when its MENAR is less than 1.0. If its if its DSCR is equal to or greater than are considered to be audit flags, alerting MENAR equals 1.0, it will receive 6.6 1.25 or if it has no debt at all. the REAC to an internal control

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deficiency or an instance of deficiencies, material weaknesses, and These flags are collected on the Data noncompliance with laws and noncompliance. Collection Form (OMB approval number regulations. The second adjustment type If the auditor’s opinions on the 2535–0107). The PHA completes this addresses significant differences financial statements and major federal form for audited submissions. If the between the unaudited and audited programs are anything other than Data Collection Form indicates that the financial information reported to HUD unqualified, points could be deducted auditor’s opinion will be anything other pursuant to § 902.30. from the PHA’s audited financial score. than unqualified, points can be The REAC will review audit flags to Audit Opinion and Flags deducted from the financial condition determine their significance as it score. The point deductions have been As part of the analysis of the financial directly pertains to the assessment of established using a three-tier system. health of a PHA, including assessment the PHA’s financial condition. If the The tiers give consideration to the of the potential or actual waste, fraud, flags have no effect on the financial seriousness of the audit qualification or abuse at a PHA, HUD will look to the components or the overall financial Audit Report to provide an additional condition of the PHA as it relates to the and limit the deducted points to a basis for accepting or adjusting the PHAS assessment, the audited score reasonable portion of the PHA’s total financial component scores. The will not be adjusted. However, if the score. information collected from the annual flags have an impact on the PHA’s Audit Flag Tiers Audit Report pertains to the type of financial condition, the PHA’s audited audit opinion; details of the audit score will be adjusted according to the Audit flags are assigned tiers, as opinion; and the presence of significant seriousness of the reported finding. stated in the following chart.

AUDIT FLAGS AND TIER CLASSIFICATIONS

Audit Flags Tier classification comments

Financial Statement Audit Opinion(s): 1. Unqualified opinion(s) ...... None. 2. Qualified opinion(s) ...... Tier 2 ...... Deduction only if the departure includes the Low Rent or Capital Fund programs. • Departures from GAAP not significant enough to cause an adverse opinion(s). • Limitations on the scope of the audit (regardless of cause) not significant enough to cause a dis- claimer of opinion. 3. Adverse opinion(s) regardless of reason(s) ...... Tier 1. 4. Disclaimer of opinion(s) regardless of reason(s) ...... Tier 1. Opinion(s) on Supplemental Information (Statement of Au- ...... Applies to the FDS. diting Standard (SAS) 29 ‘‘in relation to’’ type of opinion): 1. Fairly stated ...... None. 2. Fairly stated except for ...... Tier 2. 3. No opinion ...... Tier 1. 4. Incomplete or missing ...... Tier 1. Report on Internal Control and Compliance and Other Mat- ...... Deduction applies only if the internal control deficiency ters Noted in an Audit of the Financial Statement per- and/or noncompliance relates to the Low Rent or Cap- formed in accordance with Government Auditing Stand- ital Fund programs. ards (GAS) (Yellow Book): 1. Control deficiencies ...... Tier 3. • Significant deficiencies. • Material weakness. 2. Material noncompliance ...... Tier 3. 3. Fraud ...... Tier 3. 4. Illegal acts ...... Tier 3. 5. Abuse ...... Tier 3. Report on Compliance with Requirements Applicable to Major Federal Programs and Internal Control over Com- pliance with OMB Circular A–133—Opinion on compli- ance with each major Federal program requirements: 1. Unqualified opinion(s) on compliance with Low Rent None. program and Capital Fund program major federal re- quirements. 2. Qualified opinion(s) on compliance with Low Rent Tier 2. Program program and Capital Fund program major federal requirements (regardless of cause). 3. Adverse opinion(s) on compliance with Low Rent Tier 1. program and Capital Fund program major federal re- quirements (regardless of cause). 4. Disclaimer of opinion(s) on compliance with Low Tier 1. Rent Program and Capital Fund program major fed- eral requirements (regardless of cause). Internal Controls and Compliance: 1. Control Deficiencies: ...... Tier 3. • Significant deficiencies in internal controls over compliance with Low Rent program and Capital Fund program requirements.

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AUDIT FLAGS AND TIER CLASSIFICATIONS—Continued

Audit Flags Tier classification comments

• Material weakness in internal controls over com- pliance with Low Rent program and Capital Fund program requirements. 2. Material noncompliance with Low Rent program and Tier 3. Capital Fund program requirements. Other Consideration: 1. Significant change penalty deduction applies only if Tier 2. the significant change(s) relate to the Low Rent or Capital Fund programs. 2. Going concern ...... Tier 1. 3. Management Discussion and Analysis ...... Tier 2. and other supplemental information omitted ...... 4. Financial statements using basis other than GAAP .. Tier 1.

Each tier assesses point deductions of varying severity. The following chart illustrates the point schedule:

Tier PHAS points deducted

Tier 1 ...... Any Tier 1 finding assesses a 100 percent deduction of the PHA’s financial condition indicator score. Tier 2 ...... Any Tier 2 finding assesses a point deduction equal to 10 percent of the unadjusted financial condition in- dicator score. Tier 3 ...... Each Tier 3 finding assesses a 0.5 point deduction per occurrence, to a maximum of 4 points of the finan- cial condition indicator score.

Review of Audited Versus Unaudited flag and will result in a reduction of 10 ADDRESSES: Interested persons are Submission percent of the total audited financial invited to submit comments on this The purposes of comparing the ratios condition score. notice to the Regulations Division, and scores from the unaudited FDS The PHAS system automatically Office of General Counsel, Department submission to the ratios and scores from deducts the significant change penalty of Housing and Urban Development, the audited submission are to: from the audited score, and this 451 7th Street, SW., Room 10276, • Identify significant changes in ratio reduction triggers the REAC analyst’s Washington, DC 20410–0500. calculation results and/or scores from review. REAC may waive the significant Communications must refer to the above the unaudited submission to the audited change penalty if the project provides docket number and title. There are two submission; reasonable documentation of the methods for submitting public • Identify PHAs that consistently significant difference in its submission. comments. All submissions must refer provide significantly different data from Dated: February 1, 2011. to the above docket number and title. their unaudited submission in their Sandra B. Henriquez, 1. Submission of Comments by Mail. audited submission; and • Assistant Secretary for Public and Indian Comments may be submitted by mail to Assess or alleviate penalties Housing. the Regulations Division, Office of associated with the inability to provide [FR Doc. 2011–2656 Filed 2–22–11; 8:45 am] General Counsel, Department of reasonably accurate unaudited data Housing and Urban Development, 451 within the required time frame. BILLING CODE 4210–67–P 7th Street, SW., Room 10276, This review process will be performed Washington, DC 20410–0500. only for the audited submissions. DEPARTMENT OF HOUSING AND 2. Electronic Submission of Significant Change Penalty URBAN DEVELOPMENT Comments. Interested persons may HUD views the transmission of [Docket No. FR–5094–N–05] submit comments electronically through significantly inaccurate unaudited the Federal eRulemaking Portal at financial data as a serious condition. Changes to the Public Housing http://www.regulations.gov. HUD Therefore, projects are encouraged to Assessment System (PHAS): strongly encourages commenters to assure that financial data is as reliable Management Operations Scoring submit comments electronically. as possible for their unaudited Notice Electronic submission of comments submissions. allows the commenter maximum time to A significant change penalty will be SUMMARY: This notice provides prepare and submit a comment, ensures assessed for significant differences additional information to public timely receipt by HUD, and enables between the unaudited and audited housing agencies (PHAs) and members HUD to make them immediately submissions. A significant difference is of the public about HUD’s process for available to the public. Comments considered to be an overall financial issuing scores under the management submitted electronically through the condition score decrease of three or operations indicator of the Public http://www.regulations.gov Web site can more points from the unaudited to the Housing Assessment System (PHAS). be viewed by other commenters and audited submission. A significant DATES: Effective Date: March 25, 2011. interested members of the public. change penalty is considered a tier 2 Comment Due Date: April 25, 2011. Commenters should follow the

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instructions provided on that site to II. Transition to Asset Management and Occupancy value Points submit comments electronically. Frequency of Management Operations ≥98% ...... 16 Note: To receive consideration as public Assessments <98% but ≥96% ...... 12 comments, comments must be submitted The number of units in a PHA’s Low- <96% but ≥94% ...... 8 through one of the two methods specified Rent program and the PHAS designation <94% but ≥92% ...... 4 above. Again, all submissions must refer to for small PHAs will determine the <92% but ≥90% ...... 1 the docket number and title of the rule. frequency of management operations <90% ...... 0 No Facsimile Comments. Facsimile assessments during and after the (FAX) comments are not acceptable. transition to asset management. PHAs Subindicator #2, Tenant accounts with less than 250 public housing units receivable. This subindicator measures Public Inspection of Public will receive a PHAS assessment, based the tenant accounts receivable of a Comments. All properly submitted on its PHAS designation, as follows: project against the tenant charges for the comments and communications (1) A small PHA that is a high project’s fiscal year. Charges include submitted to HUD will be available for performer will receive a PHAS rents and other charges to tenants, such public inspection and copying between assessment every 3 years; as court costs, maintenance costs, etc. 8 a.m. and 5 p.m. weekdays at the above (2) A small PHA that is a standard or A PHA will receive 5 points if it has address. Due to security measures at the substandard performer will receive a a tenant accounts receivable ratio of less HUD Headquarters building, an advance PHAS assessment every other year; and than 1.5. It will receive 2 points if it has appointment to review the public (3) All other small PHAs will receive a tenant accounts receivable ratio of comments must be scheduled by calling a PHAS assessment every year, equal to or greater than 1.5 and less than the Regulations Division at 202–402– including a PHA that is designated as 2.5. It will receive zero points if it has 3055 (this is not a toll-free number). troubled or Capital Fund troubled in a tenant accounts receivable ratio of Individuals with speech or hearing accordance with § 902.75. equal to or greater than 2.5. impairments may access this number In baseline year, every PHA will via TTY by calling the Federal receive an overall PHAS score and in all Tenant accounts receivable value Points Information Relay Service, toll-free, at four of the PHAS indicators: physical 800–877–8339. Copies of all comments <1.5 ...... 5 condition; financial condition; ≥ submitted are available for inspection 1.5 but <2.5 ...... 2 management operations; and Capital ≥2.5 ...... 0 and downloading at http:// Fund program. This will allow a www.regulations.gov. baseline year for the small deregulated Subindicator #3, Accounts payable. PHAs. FOR FURTHER INFORMATION CONTACT: This subindicator measures the money Claudia Yarus, Department of Housing III. Subindicators that a project owes to vendors at the end of the project’s fiscal year for products and Urban Development, Office of A. Subindicators of the Management and services purchased on credit against Public and Indian Housing, Real Estate Operations Indicator. The three total operating expenses. Assessment Center (REAC), 550 12th subindicators of the management Street, SW., Suite 100, Washington, DC A PHA will receive 4 points if it has operations indicator are: an accounts payable ratio of less than 20410 at 202–475–8830 (this is not a • Occupancy; toll-free number). Persons with hearing • Tenant accounts receivable; and 0.75. It will receive 2 points if it has an or speech impairments may access this • Accounts payable. accounts payable ratio of equal to or number through TTY by calling the toll- B. Points for the Management greater than 0.75 but less than 1.5. It free Federal Information Relay Service Operations Indicator. This indicator will receive zero points if it has an at 800–877–8339. Additional assesses the management operations of accounts payable ratio of equal to or information is available from the REAC projects and PHAs. The management greater than 1.5. Internet site at http://www.hud.gov/ operations indicator score is based on a Accounts payable value Points offices/reac/. maximum of 25 points. Subindicator #1, Occupancy. This SUPPLEMENTARY INFORMATION: <0.75 ...... 4 subindicator measures the occupancy ≥0.75 but <1.5 ...... 2 I. Purpose of This Notice for the project’s fiscal year, adjusted for ≥1.5 ...... 0 allowable vacancies pursuant to 24 CFR The purpose of this notice is to 990.145. IV. Elements of Scoring provide additional information about A PHA will achieve 16 points if it has the scoring process for the PHAS an adjusted occupancy rate equal to or A. Points and Threshold management operations indicator. The greater than 98 percent. It will receive The management operations indicator purpose of the management operations 12 points if it has an adjusted score is based on a maximum of 25 indicator is to assess the project’s and occupancy rate of less than 98 percent points. In order to receive a passing PHA’s management operations but equal to or greater than 96 percent. score under this indicator, a project capabilities. All projects will be It will receive 8 points if it has an must achieve at least 15 points or 60 assessed under the management adjusted occupancy rate of less than 96 percent of the available points available operations indicator, even if a PHA has percent but equal to or greater than 94 under this indicator. not converted to asset management. percent. It will receive 4 points if it has This PHAS Management Operations an adjusted occupancy rate of less than B. Scoring Elements Scoring Notice has been revised to 94 percent but equal to or greater than The management operations indicator reflect research HUD conducted through 92 percent. It will receive 1 point if it score provides an assessment of a informal meetings with representatives has an adjusted occupancy rate of less project’s management effectiveness. of PHAs, residents, projects, and public than 92 percent but equal to or greater Under the PHAS management housing industry groups, and to provide than 90 percent. It will receive 0 points operations indicator, HUD will calculate the basis for scoring projects on the if it has an adjusted occupancy rate of a score for each project, as well as for management operations. less than 90 percent. the overall management operations of a

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PHA, that reflects weights based on the C. Example of Score Computations the census data for the census tract relative importance of the individual The indicator score for each project where the majority of units are located management subindicators. The overall equals the sum of the subindicator shall be used. If there is no census tract management operations indicator score scores, as shown in Table 2. data available for a project, the census for a PHA is a unit-weighted average of data for that project will be based on the the PHA’s individual project TABLE 2—EXAMPLE OF PROJECT county’s census data, and if county data management operations scores. In order SCORE is not available, then the state census to compute the score, an individual data will be used. project management operations score is Subindicator Points • Adjustment for physical condition multiplied by the number of units in and/or neighborhood environment. Occupancy ...... 16 each project to determine a ‘‘weighted HUD will adjust the overall Tenant Accounts Receivable ...... 2 management operations score of a value.’’ The sum of the weighted values Accounts Payable ...... 4 is then divided by the total number of project subject to one or both of the units in a PHA’s portfolio to derive the Total Points ...... 22 physical condition and/or neighborhood overall PHAS management operations environment conditions. The adjustments will be made to the indicator score. D. Physical Condition and/or Neighborhood Environment individual project scores, and then to The computation of the score under the overall management operations this PHAS indicator utilizes data The overall management operations score, so as to reflect the difficulty in obtained from the Financial Data score for a project will be adjusted managing the projects. upward to the extent that negative Schedule and requires three main The adjustment for physical condition conditions are caused by situations calculations for the subindicators, and/or neighborhood environment will outside the control of the project. These which are: be calculated by HUD and applied to all situations are related to the poor • eligible projects. The data to determine Scores are calculated for each physical condition of the project or the if a project is eligible for either subindicator; overall depressed condition of the major adjustment will be derived from the • census tract in which a project is A management operations score is Public and Indian Housing Information calculated for each project; and located. The intent of this adjustment is to avoid penalizing projects through Center databases. • A score is calculated for the overall appropriate application of the In each instance where the actual indicator score, which is a unit- adjustment. In addition, the overall PHA management operations score for a weighted average of the individual Management Operations Indicator score project is rated below the maximum project management operations scores. will be adjusted upward to reflect the score of 25 points, one unit-weighted The point values of the subindicators individual project adjustments. point each will be added for physical are listed in Table 1. Definitions and application of condition and/or neighborhood physical condition and/or neighborhood environment, but not to exceed the TABLE 1—MANAGEMENT OPERATIONS environment factors are: maximum number of 25 points available for the management operations indicator SUBINDICATORS (1) A physical condition adjustment applicable to projects at least 28 years for a project. Table 3 shows an example Point old, based on the unit-weighted average of the calculation of physical condition Subindicator value Date of Full Availability (DOFA) date. and/or neighborhood environment (2) A neighborhood environment points for a hypothetical PHA with four Occupancy ...... 16 adjustment applicable to projects in projects. The adjustment for physical Tenant Accounts Receivable ...... 5 census tracts in which at least 40 condition and/or neighborhood Accounts Payable ...... 4 percent of the families have an income environment is a unit-weighted average below the poverty rate, as documented of a PHA’s individual project physical Total Points ...... 25 by the most recent census data. If a condition and/or neighborhood project is in more than one census tract, environment adjustments.

TABLE 3—CALCULATION OF PHYSICAL CONDITION AND/OR NEIGHBORHOOD ENVIRONMENT (PCNE) POINTS

Proj. Proj. Proj. Proj. Total Line Project #1 #2 #3 #4 PHA

1 ...... Units ...... 133 65 89 25 312 2 ...... Weight ...... 42 .6% 20 .8% 28 .5% 8.0% 100 .0% 3 ...... Physical Condition Points ...... 1 1 1 0 ...... 4 ...... Neighborhood Environment Points ...... 1 1 0 0 ...... 5 ...... Total PCNE Points at Project Level ...... 2 2 1 0 ...... 6 ...... Weighted Physical Condition Points ...... 0 .43 0.21 0 .29 0.00 0 .92 7 ...... Weighted Neighborhood Environment Points ...... 0 .43 0.21 0 .00 0.00 0.63 8 ...... Weighted PCNE Points ...... 0 .85 0 .42 0.29 0.00 1 .55

This PHA has 312 total units in four both points; project #3 qualifies for only management operations indicator score projects (see line 1). The weight of each physical condition; and project #4 does based on its weight. For example, in project is based on units and is not qualify for any points (see lines 3 project #1, the weighted physical calculated by dividing the project units through 5). Each project contributes its condition and neighborhood into the total PHA units (see line 2). physical condition and/or neighborhood environment point is 0.85 and is Project #1 and project #2 qualify for environment points to the overall PHA calculated by multiplying the project

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weight of 42.6 percent (line 2) by the be viewed by other commenters and applicable on a PHA-wide basis, and not physical condition and neighborhood interested members of the public. to individual projects. The Capital Fund environment point of 2 (see line 5). The Commenters should follow the program indicator is based on a overall physical condition and instructions provided on that site to maximum of 10 points. neighborhood environment adjustment submit comments electronically. The assessment required under the at the PHA level is calculated at 1.55 Note: To receive consideration as public PHAS Capital Fund program indicator points by adding the individual project comments, comments must be submitted will be performed through analysis of: weighted scores (see line 8 under the through one of the two methods specified (1) Obligated amounts in HUD’s Total PHA column). above. Again, all submissions must refer to electronic Line of Credit Control System the docket number and title of the rule. Dated: February 1, 2011. (eLOCCS) (or its successor) for all Sandra B. Henriquez, No Facsimile Comments. Facsimile Capital Fund program grants that were Assistant Secretary for Public and Indian (FAX) comments are not acceptable. open during a PHA’s assessed fiscal Housing. Public Inspection of Public year; and (2) the PHA’s occupancy rate Comments. All properly submitted [FR Doc. 2011–2658 Filed 2–22–11; 8:45 am] as measured at the end of the PHA’s comments and communications BILLING CODE 4210–67–P fiscal year, which is calculated by submitted to HUD will be available for dividing the total occupied assisted, public inspection and copying between special use, and non-assisted units by DEPARTMENT OF HOUSING AND 8 a.m. and 5 p.m. weekdays at the above the total ACC units less the total URBAN DEVELOPMENT address. Due to security measures at the uninhabitable units as reflected in the HUD Headquarters building, an advance Inventory Management System/Public [Docket No. FR–5094–N–06] appointment to review the public Housing Information Center (PIC) (or its comments must be scheduled by calling Changes to the Public Housing successor). Of the total 100 points the Regulations Division at 202–402– available for a PHAS score, a PHA may Assessment System (PHAS): Capital 3055 (this is not a toll-free number). Fund Scoring Notice receive up to 10 points based on the Individuals with speech or hearing Capital Fund program indicator. Scoring SUMMARY: This notice provides impairments may access this number for this indicator will be dependent on additional information to public via TTY by calling the Federal the amount of time it takes a PHA to housing agencies (PHAs) and members Information Relay Service, toll-free, at obligate its Capital Fund grant(s), as of the public about HUD’s process for 800–877–8339. Copies of all comments well as the PHA’s occupancy rate. If a issuing scores under the Capital Fund submitted are available for inspection PHA has no obligation end dates in the program indicator of the Public Housing and downloading at http:// assessed fiscal year, and does not have Assessment System (PHAS). www.regulations.gov. any § 9(j) of the 1937 Act sanctions DATES: Effective Date: March 25, 2011. FOR FURTHER INFORMATION CONTACT: against it, the points for that Comment Due Date: April 25, 2011. Claudia Yarus, Department of Housing subindicator will be redistributed to the ADDRESSES: Interested persons are and Urban Development, Office of remaining subindicator. invited to submit comments on this Public and Indian Housing, Real Estate II. Transition to Asset Management and notice to the Regulations Division, Assessment Center (REAC), 550 12th Frequency of Capital Fund Program Office of General Counsel, Department Street, SW., Suite 100, Washington, DC Assessments of Housing and Urban Development, 20410 at 202–475–8830 (this is not a 451 7th Street, SW., Room 10276, toll-free number). Persons with hearing The number of units in a PHA’s Low- Washington, DC 20410–0500. or speech impairments may access this Rent program and the PHAS designation Communications must refer to the above number through TTY by calling the toll- for small PHAs will determine the docket number and title. There are two free Federal Information Relay Service frequency of Capital Fund program methods for submitting public at 800–877–8339. Additional assessments during and after the comments. All submissions must refer information is available from the REAC transition to asset management. PHAs to the above docket number and title. Internet site at http://www.hud.gov/ with less than 250 public housing units 1. Submission of Comments by Mail. offices/reac/. will receive a PHAS assessment, based Comments may be submitted by mail to SUPPLEMENTARY INFORMATION: on its PHAS designation, as follows: the Regulations Division, Office of I. Purpose of This Notice (1) A small PHA that is a high General Counsel, Department of performer will receive a PHAS Housing and Urban Development, 451 The purpose of this notice is to assessment every 3 years; 7th Street, SW, Room 10276, provide information about the scoring (2) A small PHA that is a standard or Washington, DC 20410–0500. process for PHAS indicator #4, Capital substandard performer will receive a 2. Electronic Submission of Fund program. The purpose of the PHAS assessment every other year; and Comments. Interested persons may Capital Fund program assessment is to submit comments electronically through examine the period of time it takes a (3) All other small PHAs will receive the Federal eRulemaking Portal at PHA to obligate the funds provided to a PHAS assessment every year, http://www.regulations.gov. HUD a PHA from the Capital Fund program including a PHA that is designated as strongly encourages commenters to under section 9(j) of the 1937 Act (42 troubled or Capital Fund troubled in submit comments electronically. U.S.C. 1437g(9)(j)), and to occupy units. accordance with § 902.75. Electronic submission of comments Funds from the Capital Fund program In the baseline year, every PHA will allows the commenter maximum time to under section 9(d) of the 1937 Act (42 receive an overall PHAS score and in all prepare and submit a comment, ensures U.S.C. 1437g(d)(2)) do not include four of the PHAS indicators: physical timely receipt by HUD, and enables HOPE VI program funds. condition; financial condition; HUD to make them immediately This indicator is not applicable for management operations; and Capital available to the public. Comments PHAs that choose not to participate in Fund program. This will allow a submitted electronically through the the Capital Fund program under section baseline year for the small deregulated http://www.regulations.gov Web site can 9(d) of the 1937 Act. This indicator is PHAs.

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III. Subindicators Occupancy rate Points DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT A. Subindicators of Capital Fund 93%–<96% ...... 2 [Docket No. FR–5415–C–22A] Program Indicator. The two 96%–100% ...... 5 subindicators of the Capital Fund program indicator are: Notice of Availability: Notice of IV. Sanctions • Timeliness of fund obligation; and Technical Correction to the Notice of • Funding Availability for Fiscal Year The PHA’s occupancy rate. Sanctions for the obligation of funds 2010 Transformation Initiative: Natural B. Points for Capital Fund Program are in accordance with 24 CFR 905.120. Experiments Program Indicator. This indicator measures the If a PHA has been sanctioned during the statutory requirements for the Capital assessment period, the PHA will receive AGENCY: Office of the Chief of the Fund program. 0 points for the timeliness of fund Human Capital Officer, HUD. Subindicator #1, Timeliness of Fund obligation. ACTION: Notice. Obligation. This subindicator examines V. Elements of Scoring SUMMARY: On January 20, 2011, HUD the period of time it takes for a PHA to posted on http://www.Grants.gov, a obligate funds from the Capital Fund A. Points and Threshold. The Capital Notice of Funding Availability (NOFA) program under section 9(j)(1) of the Fund program indicator is based on a for Fiscal Year 2010 Transformation 1937 Act (42 U.S.C. 1437g(9)(j)). HUD maximum of 10 points. In order to Initiative: Natural Experiments Grant may extend the period of time for the receive a passing score under this Program. This Correction clarifies the obligation of funds in accordance with indicator, a PHA must achieve at least rating Factors for Award to be used in 24 CFR 905.120 and section 9(j)(2) of the 5 points or 50 percent of the available determining selected applicants and 1937 Act. Points are awarded on the points under this indicator. extends the deadline date. following bases: Funding for this effort is made B. Scoring Elements. The Capital The PHA will earn the full 5 points available by the Department of Housing if it has obligated 90 percent or more of Fund program indicator score provides and Urban Development Appropriations the grant amount for all of its grants on an assessment of a PHA’s ability to Act, 2010 (Pub. L. 111–117 approved its obligation end date, or on the obligate Capital Fund program funds in December 16, 2009). This program is extended obligation end date, for all a timely manner, as well as a PHA’s undertaken by HUD’s research authority open Capital Fund program grants that occupancy rate. The computation of the under the Transformation Initiative have obligation end dates during the score under this PHAS indicator utilizes Fund. assessed fiscal year and does not have data obtained through analysis of This Technical Correction also any grants that have been sanctioned obligated amounts in HUD’s eLOCCS (or extends the application deadline date pursuant to § 9(j) of the 1937 Act during its successor) for all Capital Fund from Monday, February 21, 2011 to a the assessed fiscal year. program grants that were open during new application deadline date of The PHA will earn 0 points if it has the assessed fiscal year and PIC (or its Wednesday, February 23, 2011. obligated less than 90 percent of the successor) data as of the PHA’s assessed Applicants do not need to download a grant amount for any of its open grants Fiscal Year End. Scores are first new application or resubmit their on the obligation end date during the calculated for each subindicator. From applications as a result of this notice. assessed fiscal year or is undergoing the two subindicator scores, an The technical correction notice can be found using the Department of Housing sanctions as per Section III of this indicator score is then calculated. notice. and Urban Development agency link on C. Example of Score Computations. the Grants.gov/Find Web site at http:// Obligation value Points The indicator score equals the sum of www.grants.gov/search/agency.do. A the subindicator scores, described in link to Grants.gov is also available on ≥90% and no sanctions ...... 5 Section II, paragraph B. the HUD Web site at http:// <90% or sanctions ...... 0 D. PHA Responsibility. PHAs are www.hud.gov/offices/adm/grants/ responsible for ensuring that their fundsavail.cfm. The Catalogue of If the PHA receives 0 points for this Capital Fund program information is Federal Domestic Assistance (CFDA) subindicator, it is not eligible for points submitted to eLOCCS and occupancy number for this program is 14.524. for subindicator # 2. information to PIC by the submission Applications must be submitted Subindicator #2, Occupancy rate. due date. A PHA may not appeal its electronically through Grants.gov. This subindicator measures the PHA’s PHAS and/or Capital Fund program FOR FURTHER INFORMATION CONTACT: occupancy rate as measured at the end score based on the fact that it did not Questions regarding specific program of the PHA’s fiscal year, which is submit its Capital Fund program requirements should be directed to the calculated by dividing the total agency contact identified in the program information to eLOCCS and occupancy occupied assisted, HUD approved NOFA. Program staff will not be information to PIC by the submission special use, and non-assisted units by available to provide guidance on how to the total ACC units less the total due date. PHAs shall retain supporting prepare the application. Questions uninhabitable units as reflected in the documentation for the Capital Fund regarding the 2010 General Section Inventory Management System/PIC, or program for at least 3 years. should be directed to the Office of its successor. This information will be Dated: February 1, 2011. Grants Management and Oversight at calculated as of the end of the PHA’s Sandra B. Henriquez, (202) 708–0667 or the NOFA fiscal year. A PHA will receive 2 points Assistant Secretary for Public and Indian Information Center at 800–HUD–8929 if it has an adjusted occupancy rate of Housing. (toll free). Persons with hearing or at least 93 percent but not more than 96 speech impairments may access these [FR Doc. 2011–2657 Filed 2–22–11; 8:45 am] percent. A PHA will receive 5 points if numbers via TTY by calling the Federal it has an adjusted occupancy rate of 96 BILLING CODE 4210–67–P Information Relay Service at 800–877– percent or more. 8339.

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Dated: February 17, 2011. available to the public. Comments codified at 24 CFR part 5, subpart G. Barbara S. Dorf, submitted electronically through the The physical condition assessment Director, Office of Departmental Grants, http://www.regulations.gov website can under the PHAS utilizes uniform Management and Oversight, Office of the be viewed by other commenters and physical inspection procedures to Chief Human Capital Officer. interested members of the public. determine compliance with uniform [FR Doc. 2011–4031 Filed 2–22–11; 8:45 am] Commenters should follow the standards and is an important indicator BILLING CODE 4210–67–P instructions provided on that site to of performance for a project and a PHA. submit comments electronically. All projects will be assessed under the Note: To receive consideration as public physical condition indicator, even if a DEPARTMENT OF HOUSING AND comments, comments must be submitted PHA has not converted to asset URBAN DEVELOPMENT through one of the two methods specified management. above. Again, all submissions must refer to The physical condition indicator [Docket No. FR–5094–N–03] the docket number and title of the rule. score is based on a maximum of 40 Changes to the Public Housing No Facsimile Comments. Facsimile points. In order to receive a passing Assessment System (PHAS): Physical (FAX) comments are not acceptable. score under this indicator, a project Condition Scoring Notice Public Inspection of Public must achieve at least 24 points or 60 Comments. All properly submitted percent of the points available under AGENCY: Office of the Assistant comments and communications this indicator. Under the PHAS physical Secretary for Public and Indian submitted to HUD will be available for condition indicator, REAC will calculate Housing, HUD. public inspection and copying between a score for each project, as well as for ACTION: Notice. 8 a.m. and 5 p.m. weekdays at the above the overall physical condition of a PHA. address. Due to security measures at the The physical condition score, based on SUMMARY: This notice provides HUD Headquarters building, an advance a 40-point scale, is included in each additional information to public appointment to review the public PHA’s aggregate PHAS score. housing agencies (PHAs) and members comments must be scheduled by calling III. Transition to Asset Management of the public about HUD’s process for the Regulations Division at 202–402– and Frequency of Inspections issuing scores under the physical 3055 (this is not a toll-free number). The number of units in a PHA’s Low- condition indicator of the Public Individuals with speech or hearing Rent program and the PHAS designation Housing Assessment System (PHAS). impairments may access this number for small PHAs will determine the This notice amends the current Physical via TTY by calling the Federal frequency of physical inspections Condition Scoring Process notice that Information Relay Service, toll-free, at during and after the transition to asset was published on June 29, 2000, as 800–877–8339. Copies of all comments management. PHAs with less than 250 corrected and updated by the Physical submitted are available for inspection public housing units will receive a Condition Scoring Process notice that and downloading at http:// PHAS assessment, based on its PHAS was published on November 26, 2001. www.regulations.gov. DATES: Effective Date: March 24, 2011. designation, as follows: FOR FURTHER INFORMATION CONTACT: (1) A small PHA that is a high Comment Due Date: April 25, 2011. Claudia Yarus, Department of Housing performer will receive a PHAS ADDRESSES: Interested persons are and Urban Development, Office of assessment every 3 years; invited to submit comments on this Public and Indian Housing, Real Estate (2) A small PHA that is a standard or notice to the Regulations Division, Assessment Center (REAC), 550 12th substandard performer will receive a Office of General Counsel, Department Street, SW., Suite 100, Washington, DC PHAS assessment every other year; and of Housing and Urban Development, 20410 at 202–475–8830 (this is not a (3) All other small PHAs will receive 451 7th Street, SW., Room 10276, toll-free number). Persons with hearing a PHAS assessment every year, Washington, DC 20410–0500. or speech impairments may access this including a PHA that is designated as Communications must refer to the above number through TTY by calling the toll- troubled or Capital Fund troubled, in docket number and title. There are two free Federal Information Relay Service accordance with § 902.75. methods for submitting public at 800–877–8339. Additional For PHAs with 250 or more units of comments. All submissions must refer information is available from the REAC any PHAS designation, the inspection to the above docket number and title. Internet site at http://www.hud.gov/ score of each project (not the overall 1. Submission of Comments by Mail. offices/reac/. physical indicator score) will determine Comments may be submitted by mail to SUPPLEMENTARY INFORMATION: the frequency of inspections for that the Regulations Division, Office of project. Projects that score 90 points or General Counsel, Department of I. Purpose of This Notice higher based on a possible 100-point Housing and Urban Development, 451 The purpose of this notice is to project score will be inspected 7th Street, SW., Room 10276, describe the PHAS physical condition triennially. Projects that score less than Washington, DC 20410–0500. scoring process and to prescribe the 90 points and at least 80 points based 2. Electronic Submission of frequency of individual project on a possible 100-point project score Comments. Interested persons may inspections. will be inspected biennially. Projects submit comments electronically through that score less than 80 points based on the Federal eRulemaking Portal at II. Purpose of the PHAS Physical a possible 100-point scale will be http://www.regulations.gov. HUD Condition Assessment inspected annually. The performance strongly encourages commenters to The purpose of the PHAS physical incentive will change from PHA-based submit comments electronically. condition assessment is to ensure that to project-based. Project inspections for Electronic submission of comments public housing units are decent, safe, PHAs with 250 or more units will be allows the commenter maximum time to sanitary, and in good repair, as based on the project’s prior year prepare and submit a comment, ensures determined by an inspection conducted inspection score. timely receipt by HUD, and enables in accordance with HUD’s Uniform Projects for any PHA designated as HUD to make them immediately Physical Condition Standards (UPCS) troubled will be inspected annually

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regardless of any project’s individual reliable. A report addressing the issues nominal item weight, which is also score. PHAs of 250 units or more with raised in the Conference Report, entitled known as the amenity weight. unit-weighted project scores from 2 or 3 the Review and Assessment of the REAC Normalized area weight represents different years will have all their prior Study of the Physical Assessment Sub- weights used with area scores to year scores of 90 and above or 80 and System (PASS) Process, was provided to calculate project-level scores. The above (and current year scores for each the House and Senate Committees on weights are adjusted to reflect the project that was inspected), multiplied Appropriations on March 1, 2001. inspectable items actually present at the by 40 percent, totaled together, and VI. The Physical Inspection Scoring time of the inspection. These weights rounded to produce an overall physical Process are proportional, as follows: indicator score. • For dwelling units, the area score is In the baseline year, every PHA will The PHAS physical inspection the weighted average of sub-area scores receive an overall PHAS score and in all generates comprehensive results, for each unit, weighted by the total of four of the PHAS indicators: Physical including physical inspection scores item weights present for inspection in condition; financial condition; reported at the project level; area level each unit, which is referred to as the management operations; and Capital scores for each of the five physical amenity weight. Fund program. This will allow a inspection areas, as applicable; and • For common areas, the area score is baseline for the physical condition observations of deficiencies recorded the weighted average of sub-area inspections and the 3–2–1 inspection electronically by the inspector at the common area scores weighted by the schedule, as well as a baseline year for time of the inspection. total weights for items available for the small deregulated PHAs. 1. Definitions inspection (or amenity weight) in each IV. Item Weights and Criticality Levels, The following are the definitions of residential building common area or and Dictionary of Deficiency the terms used in the physical condition common building. Common buildings Definitions scoring process: refer to any inspectable building that contains no dwelling units. All common The Item Weights and Criticality Criticality means one of five levels buildings are inspected. Levels tables and the Dictionary of that reflect the relative importance of • Deficiency Definitions, currently in use, the deficiencies for an inspectable item. For building exteriors or building were published as Appendices 1 and 2 Appendix 1 lists all deficiencies with systems, the area scores are weighted their designated criticality levels, which averages of sub-area scores. to the Public Housing Assessment • System Physical Condition Scoring vary from 1 to 5, with 5 being the most For sites, the area score is Process Interim Scoring, Corrections, critical. Based on the criticality level, calculated as follows: (1) The amenity and Republication notice (66 FR 59102), each deficiency has an assigned value weights found on a site, (2) minus dated November 26, 2001. The Federal that is used in scoring. Those values are deductions for deficiencies, and (3) Register notice along with both as follows: normalized to a 100-point scale. appendices is available in HUD’s REAC Normalized sub-area weight means Physical Inspection Library Internet site Criticality Level Value the weight used with sub-area scores to at: http://www.hud.gov/offices/reac/ compute an inspectable area score. Critical ...... 5 5.00 These weights are proportional: library/documents/ Very Important ...... 4 3.00 • fr-notice20011126.pdf. A stand-alone, For dwelling units, the item weight Important ...... 3 2.25 of amenities available in the unit at the user friendly Dictionary of Deficiency Contributes ...... 2 1.25 Definitions is found at http:// Slight Contribution .... 1 0.50 time of inspection is the amenity weight. www.hud.gov/offices/reac/pdf/ • pass_dict2.3.pdf. Based on the importance of the For common areas, the common deficiency as reflected by its criticality area amenity weight is divided by a V. Validity and Reliability of the value, points are deducted from the building’s probability of being selected Physical Inspection Protocols project score. For example, a clogged for inspection. All residential buildings The Conference Report (H.R. Conf. drain in the kitchen is more critical than with common areas may not be selected Rep. 106–988; October 18, 2000) a damaged surface on a countertop. for inspection; however, all buildings accompanying HUD’s FY 2001 Therefore, more points will be deducted with common areas are selected to Appropriations Act (Pub. L. 106–377, for a clogged drain than for a damaged determine the amenity weight. • approved October 27, 2000) directed surface. For building exterior and building HUD to continue to assess the accuracy Deficiencies refer to specific problems systems, the building exterior or and effectiveness of the PHAS system, that are recorded for inspectable items, building system amenity weight is in particular the physical condition such as a hole in a wall or a damaged multiplied by the building’s size inspection protocol. HUD was also refrigerator in the kitchen. (number of units) and then divided by directed to perform a statistically valid Inspectable area means any of the five its probability of being selected for test of PHAS, conduct a thorough major components of the project: Site, inspection. analysis of the results, and have the building exteriors, building systems, • For the site, there is no sub-area methodology and results reviewed by an common areas, and dwelling units. score. For each project, there is a single independent expert before taking any Inspectable items refer to walls, site. adverse action against a PHA based kitchens, bathrooms, and other features Note that dividing by a building’s solely on its PHAS score. HUD retained that are inspected in an inspectable probability of being selected for the Louis Berger Group (the contractor) area. The number of inspectable items inspection is the same as multiplying by to conduct the review of the varies for each inspectable area, from 8 the probability weight, since the methodology and results of the to 17. Weights are assigned to each item probability weight is 1 divided by the statistically valid test. to reflect their relative importance and probability of being selected for The findings of the contractor’s study are shown in the Item Weights and inspection. concluded that the physical condition Criticality Levels tables. The tables refer Project is used synonymously with inspection protocol is repeatable and to the weight of each item as the the term ‘‘property.’’

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Severity means one of three levels that that are possible for each deficiency. area, or sub-area. A property score reflect the extent of damage associated Based on the severity of each deficiency, includes both an alphabetical and a with each deficiency, with values the score is reduced. Points deducted numerical component. The number assigned as follows: are calculated by multiplying the item represents an overall score for the basic weight by the values for criticality and physical condition of a property, Severity level Value severity, as described below. For including points deducted for health specific definitions of each severity 3 ...... 1.00 and safety deficiencies other than those 2 ...... 0.50 level, see the Dictionary of Deficiency associated with smoke detectors. The 1 ...... 0.25 Definitions. letter code specifically indicates Score means a number between 0 and whether health and safety deficiencies The Item Weights and Criticality 100 that reflects the physical condition were detected, as shown in the chart Levels tables show the severity levels of a project, inspectable area, dwelling below:

Health and safety deficiencies Life threat- No health ening (LT)/ Fire safety Physical inspection score alphanumeric codes and safety Non-Life exigent deficiencies threatening health and No smoke Smoke de- (NLT) safety detector tector prob- (EHS) problems lems

a ...... X ...... X ...... a* ...... X ...... X b ...... X ...... X ...... b* ...... X ...... X c ...... X X ...... c* ...... X ...... X

To record a health or safety problem, consideration is also given to several adjusted depending on how many items a letter is added to the project score (a, issues concerning equity between are actually there to be inspected. b, or c); and to note that one or more properties so that scores fairly assess all 4. Deficiency Definitions smoke detectors are inoperable or types of properties: missing, an asterisk (*) is added to the Proportionality. The scoring During a physical inspection of a project score. methodology includes an important project, the inspector looks for Sub-area means an area that will be control that does not allow any sub-area deficiencies for each inspectable item inspected for all inspectable areas scores to be negative. If a sub-area, such within the inspectable areas, such as the except the site. For example, the as the building exterior for a given walls (the inspectable item) of a building exterior for building ‘‘2’’ is a building, has so many deficiencies that dwelling unit (the inspectable area). sub-area of the building exterior area. the sub-area score would be negative, Based on the observed condition, the Likewise, unit ‘‘5’’ would be a sub-area the score is set to zero. This control Dictionary of Deficiency Definitions of the dwelling units area. Each mechanism ensures that no single defines up to the three levels of severity inspectable area for each building in a building or dwelling unit can affect the for each deficiency: Level 1 (minor), property is treated as a sub-area. overall score more than its Level 2 (major), and Level 3 (severe). proportionate share of the whole. The associated values were shown 2. Scoring Protocol earlier in the first chart of Section VI. A To generate accurate scores, the Configuration of project. The scoring specific criticality level, with associated inspection protocol includes a methodology takes into account values as shown in that chart, is also determination of the appropriate different numbers of units in buildings. assigned to each deficiency. The relative weights of the various To fairly score projects with different criticality level reflects the importance components of the inspection; that is, numbers of units in buildings, the area of the deficiency relative to all other which components are the most scores are calculated for building possible observable deficiencies for the important, the next most important, and exteriors and systems by using weighted inspectable area. so on. For example, in the building averages of the sub-area scores, where 5. Health and Safety Deficiencies exterior area, a blocked or damaged fire the weights are based on the number of escape is more important than a cracked units in each building and on the The UPCS physical inspection window, which is more important than building’s probability of being selected emphasizes health and safety (H&S) a broken light fixture. The Item Weights for inspection. In addition, the deficiencies because of their crucial and Criticality Levels tables provide the calculation for common areas includes impact on the well-being of residents. A nominal weight of observable the amenities existing in the residential subset of H&S deficiencies is exigent deficiencies by inspectable item for each common areas and common buildings at health and safety (EHS) deficiencies. area/sub-area. The Dictionary of the time of inspection. These are life threatening (LT) and Deficiency Definitions provides a Differences between projects. The require immediate action or remedy. definition for the severity of each scoring methodology also takes into EHS deficiencies can substantially deficiency in each area/sub-area. account that projects have different reduce the overall project score. As features and amenities. To ensure that noted in the definition for the word 3. Equity Principles the overall score reflects only items that ‘‘score’’ in the Definitions section, all In addition to determining the are present to be inspected, weights to H&S deficiencies are highlighted by the appropriate relative weights, calculate area and project scores are addition of a letter to the numeric score.

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The Item Weights and Criticality Levels • A project in excellent physical • Weights for inspectable items tables list all H&S deficiencies with an condition with no H&S deficiencies within inspectable areas (8 to 17 per LT designation for those that are EHS would have a score of 90a to 100a. area). deficiencies and an NLT designation for 6. Scoring Process Elements • Criticality levels (critical, very those that are non-life threatening. The important, important, contributes, and LT and NLT designations apply only to The physical condition scoring slight contribution) plus their associated severity level 3 deficiencies. process is based on three elements To ensure prompt correction of H&S within each project: (1) Five inspectable values for deficiencies within areas deficiencies, the inspector gives the areas (site, exterior, systems, common inspected. project representative a deficiency areas, and dwelling units); (2) • Severity levels (3, 2, and 1) and report identifying every observed EHS inspectable items in each inspectable their associated values for deficiencies. area; and (3) observed deficiencies. In deficiency before the inspector leaves • Health and safety deductions the site. The project representative broad terms, the score for a property is (exigent/fire safety and non-life acknowledges receipt of the deficiency the weighted average of the five threatening for all inspectable areas). report by signature. The inspector also inspectable area scores, where area transmits the deficiency report to HUD weights are adjusted to account for all 9. Area Weights no later than the morning of the first of the inspectable items that are actually business day after completing the present to be inspected. In turn, area Area weights are used to obtain a inspection. HUD makes available to all scores are calculated by using weighted weighted average of area scores. A PHAs an inspection report that includes averages of sub-area scores (e.g., project’s overall physical condition information about all of the H&S building area scores for a single building score is a weighted average of all deficiencies recorded by the inspector. or unit scores for a single unit) for all inspectable area scores. The The report shows: sub-areas within an area. approximate relative weights are: • The number of H&S deficiencies 7. Scoring Using Weighted Averages (EHS and NLT) that the inspector Inspectable area Weight observed; For all areas except the site, • All observed smoke detector normalized sub-area weights are Site ...... 15% deficiencies; and determined using the size of sub-areas, Building Exterior ...... 15% • A projection of the total number of the items available for inspection, and Building Systems ...... 20% H&S problems that the inspector the sub-area’s probability of selection Common Areas ...... 15% potentially would see in an inspection for inspection. Sub-area scores are Dwelling Units ...... 35% of all buildings and all units. determined by deducting points for Problems with smoke detectors do not deficiencies based on the importance These weights are assigned for all currently affect the overall score. When (weight) of the item, the criticality of the inspections when all inspectable items there is an asterisk indicating that the deficiency, and the severity of the project has at least one smoke detector deficiency. The maximum deduction for are present for each area and for each deficiency, that part of the score may be a single deficiency will not calculate a building and unit. All of the inspectable identified as ‘‘risk;’’ for example, ‘‘93a, score of less than zero. Points will be items may not be present in every risk’’ for 93a*, and ‘‘71c, risk’’ for 71c*. deducted only for one deficiency of the inspectable area. When items are There are six distinct letter grade same kind within a sub-area. For missing in an area, the area weights are combinations based on the H&S example, if multiple deficiencies for modified to reflect the missing items so deficiencies and smoke detector broken windows are recorded, only the that within that area they will add up deficiencies observed: a, a*, b, b*, c, and most severe deficiency observed (or one to 100 percent. Area weights are c*. For example: of the most severe, if there are multiple recalculated when some inspectable • A score of 90c* means that the deficiencies with the same level of items are missing in one or more area(s). project contains at least one EHS severity) will result in a point Although rare, it is possible that an deficiency to be corrected, including at deduction. inspectable area could have no least one smoke detector deficiency, but inspectable items available; for example, is otherwise in excellent condition. 8. Essential Weights and Levels • A score of 40b* means the project The process of scoring a project’s there could be no common areas in the is in poor condition, has at least one physical condition depends on the inspected residential buildings and no non-life threatening deficiency, and has weights, levels, and associated values of common buildings. In this case, the at least one missing or inoperable smoke the following quantities: weight of the ‘‘common areas’’ would be detector. • Weights for the 5 inspectable areas 0 percent and its original 15 percent • A score of 55a means that the (site, building exteriors, building weight would be equitably redistributed project is in poor condition, even systems, common areas, and dwelling to the other inspectable areas, as shown though there are no H&S deficiencies. units). in the example below:

Missing com- Adjusted Inspectable area Normal weight mon areas Adjustment weight

Site ...... 15% 15% .15/.85 =..... 18% Building Exterior ...... 15% 15% .15/.85 = ..... 18% Building Systems ...... 20% 20% .20/.85 = ..... 23% Common Areas ...... 15% 0% ...... 0% Dwelling Units ...... 35% 35% .35/.85 = ..... 41%

Total ...... 100% 85% ...... 100%

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The original 15 percent weight for the between areas of inspectable items To illustrate how physical condition common areas is redistributed by actually present. For reporting purposes, scores are calculated, three examples are totaling the weights of other inspectable the number of possible points is the provided below. Following this section, areas (100 percent¥15 percent = 85 normalized area weight adjusted by another example is given specifically for percent) and dividing the weights of multiplying by 100 so that the possible public housing projects to show how each other area by that amount (0.85). points for the five areas add up to 100. project scores are rolled up into the The modified weights would then be 18 In the Physical Inspection Report for PHAS physical indicator score for the percent for site, 18 percent for building each project that is sent to the PHA, the PHA as a whole. exterior, 23 percent for building following items are listed: Example #1 illustrates how the score • ‘‘ systems, 0 percent for common areas, 41 Normalized weights as the possible for a sub-area of building systems is points’’ by area; percent for dwelling units, and again be calculated. Consider a 10-unit • The area scores, taking into account equal to (be normalized to) 100 percent. residential building in which the five the points deducted for observed 10. Area and Sub-Area Scores deficiencies; inspectable areas are present. During the For inspectable areas with sub-areas • The deductions for H&S for each inspection, damaged vents in the roof (all areas except sites), the inspectable inspectable area; and are observed. This deficiency reflected a area score is a weighted average of the • The overall project score. severity level of 1, which has a severity sub-area scores within that area. The The Physical Inspection Report allows weight of 0.25; a criticality level of 4, scoring protocol determines the amenity the PHA and the project manager to see which has a criticality weight of 3; and weight for the site and each sub-area as the magnitude of the points lost by an item weight of 16.0. The amount of noted in Section VI.1 under the inspectable area and the impact on the the points deducted is the item weight, definition for normalized sub-area score of the H&S deficiencies. multiplied by the criticality weight weight. For example, a property with no multiplied by the severity value. This is 12. Examples of Physical Condition illustrated in the table below. fencing or gates in the inspectable area Score Calculations of the site would have an amenity Area: Building Exterior weight of 90 percent or 0.9 (100 percent The physical inspection scoring is Item: Roof minus 10 percent for lack of fencing and deficiency based. All projects start with gates), and a single dwelling unit with 100 points. Each deficiency observed Deficiency: Damaged Vents all items available for inspection, except reduces the score by an amount Criticality Level: 4, Severity Level: 1 a call-for-aid would have an amenity dependent on the importance and weight of 0.98 or 98 percent (100 severity of the deficiency, the number of Element Associated value percent minus 2 percent for lack of call- buildings and units inspected, the for-aid). A call-for-aid is a system inspectable items actually present to be Item Weight ...... 16 designed to provide elderly residents inspected, and the relative weights Criticality Weight ...... 3.0 between inspectable items and Severity Weight ...... 0.25 the opportunity to call for help in the Calculation of Points event of an emergency. inspectable areas. The calculation of a physical Deducted for Defi- The amenity weight excludes all ciency ...... 16 × 3 × 0.25 = 12 health and safety items. Each deficiency condition score is illustrated in the as weighted and normalized are examples below. The examples go subtracted from the sub-area or site- through a number of interim stages in If this building exterior has all weighted amenity score. Sub-area and calculating the score, illustrating how inspectable items except for a fire site area scores are further reduced for sub-area scores are calculated for a escape, the amenity weight for the first any observed health and safety single project, how the sub-area scores building exterior adds up to 84 percent deficiencies. These deductions are taken are rolled up into area scores, and how (100 percent starting point minus 16 at the site, building, or unit level. At area scores are combined to calculate percent for the lack of a fire escape, this point, a control is applied to the overall project score. One particular excluding H&S items). If the damaged prevent a negative site, building, or unit deficiency is carried through the roof vents were the only deficiency score. The control ensures that no single examples showing the end result. observed, then the initial proportionate building or unit can affect an area score As will be seen, the deduction starts score for this sub-area (Building Exterior more than its weighted share. out as a percent of the sub-area. Then #1) would be the amenity score minus the area score is considerably decreased the deficiency points and then 11. Overall Project Score in the final overall project score because normalized to a 100-point basis, as The overall project score is the the deduction is averaged across other shown below. Additional deficiencies or weighted average of the five inspectable sub-areas and then averaged across the H&S deficiencies (calculated in the area scores, with the five areas weighted five inspectable areas. Although interim same manner) would further decrease by their normalized weights. results in the examples are rounded, the sub-area score, and if the score Normalized area weights reflect both the only the final results are rounded for dropped below zero, it would be set to initial weights and the relative weights actual calculations. zero.

Element Associated value

Amenity Score ...... 84 Deficiency Points ...... 12 Calculation for the Initial Proportionate Score ...... 84 ¥ 12 = 72 Normalizing Factor ...... 100 Calculation for the Initial Sub-Area Score Building Exterior #1 ...... (72/84) × 100 = 85.7

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Example #2 illustrates how the area —84 percent amenity weight for items —Building exterior score is 69.1 points score is calculated. Consider a property that are present to be inspected in the The building exterior score for the with two buildings with the following building exterior building exterior area is the weighted characteristics: —Building exterior score is 85.7 points average of the individual scores for each • • Building #1 (from Example #1, Building #2: building exterior. Each building exterior above): —20 units score is weighted by the number of units —100 percent amenity weight for items and the percent of the weight for items —10 units that are present to be inspected in the present to be inspected in the building building exterior exterior.

Sum of the Initial Building Building Number of × Amenity = Unit weighted / building × proportionate = exterior units weight average weights score area score

#1 ...... 10 0.84 08.4 28.4 85.7 25.3 #2 ...... 20 1.00 20.0 28.4 69.1 48.7

Total ...... 30 ...... 28.4 ...... 74.0

Example #3 illustrates how the are used in conjunction with the total then divided by the total number of overall weighted average for the units to calculate the building exterior units for all buildings, as shown below. building exterior area amenity weight is area amenity weight. Each building For purposes of the next example, the calculated. The separate amenity amenity weight is multiplied by the Overall Building Exterior Area Amenity weights for buildings #1 and #2, above, number of units in that building and Weight of 94.7 was rounded to 95.

Overall build- Normalized to ing exterior Building exterior Number of × Amenity = Unit weighted / Total units × a 100 point = area weighted units weight average basis average amenity weight

#1 ...... 10 0.84 08.4 30 100 28.0 #2 ...... 20 1.00 20.0 30 100 66.7

Total ...... 30 ...... 28.4 ...... 94.7

Example #4 illustrates how the score • Building Systems: To continue the scoring protocol, the for a property is calculated. Consider a —Score: 70 points adjusted area weights for all five property with the following —80 percent weighted average amenity inspectable areas are determined. For characteristics: weight purposes of this example, the adjusted • Site: —Nominal weight: 20 percent • weights and maximum possible points —Score: 90 points Common Areas: for each of the five inspectable areas are —100 percent amenity weight —Score: 60 points shown in the table below. All of the —Nominal weight: 15 percent —30 percent weighted average amenity • Building Exteriors (from example weight values in this table, except for the #2 and #3, above): —Nominal weight: 15 percent values for building exteriors, are —Score: 74 points • Dwelling Units: presumed. The values for building —95 percent weighted average amenity —Score: 80 points exteriors were calculated as part of this weight —90 weighted average amenity weight ongoing example. —Nominal weight: 15 percent —Nominal weight: 35 percent

Amenity Normalized to Maximum Inspectable area Area weight × Amenity = weighted / Total adjusted × 100 point = possible weight average weight scale points

Site ...... 15 1.00 15.0 81.2 100 18.5 Building Exterior 15 0.95 14.2 81.2 100 17.5 Building Systems 20 0.80 16.0 81.2 100 19.7 Common Areas .. 15 0.30 04.5 81.2 100 05.5 Dwelling Units .... 35 0.90 31.5 81.2 100 38.8

Total ...... 81.2 ...... 100.0

The nominal possible points for each to produce the possible points for the example #1 in the building exterior area inspectable area is multiplied by the inspectable area. The property score is impacts the overall property score. The amenity weight, divided by the total the sum of all weighted area scores for property score of 77.8 is rounded to 78 adjusted amenity weight, and that property. The sample shown below for the final example. normalized to a 100-point basis, in order reflects how the deficiency from

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Normalized to Project #1 Inspectable area Area points × Area score / a 100 point = weighted area scale scores

Site ...... 18.5 90 100 16.7 Building Exterior ...... 17.5 74 100 13.0 Building Systems ...... 19.7 70 100 13.8 Common Areas ...... 05.5 60 100 03.3 Dwelling Units ...... 38.8 80 100 31.0

Total ...... 100.0 ...... 77.8

13. Computing the PHAS Physical weights are the number of units in each project from Example #1 would Inspection Score project divided by the total number of calculate to an overall physical units in all projects for the PHA. For inspection score of 91. Note the impact The overall physical inspection score example, the project described in on the overall physical inspection of a for the PHAS for a PHA is the weighted Example #1 from above has a score of single property with a large number of average of the PHA’s individual project 78 with 30 units. Using another project units. physical inspection scores, where the with a score of 92 and 650 units with

Weighted av- Rescaling to Number of Project Project erage property × the 40-point = × units in the / Total PHA = weighted area score basis property units score

#1 ...... 78 .4 31.2 30 680 1.4 #2 ...... 92 .4 36.8 650 680 35.2

Total ...... 100 ...... 36.6

The physical subsystem indicator size of the number of buildings selected. buildings. Two buildings each have 10 score for this PHA provided to HUD’s In Phase 2, the additional buildings that dwelling units and 20 buildings are centralized scoring system would be are included in the sample are selected scattered-site single-family dwelling 36.6, rounded to a score of 37. with equal probability so that the units. The project has 40 total dwelling Weighted-average property scores are residential building sample size is the units (two buildings with 10 units each scaled to a 40-point basis by multiplying lesser of either the dwelling unit sample added to 20 single units (20+20)). The by 0.4. The total is then multiplied by size or the number of all residential target sample size for a project with 40 the number of units within the property buildings. All common buildings are dwelling units is 16 units, and the and divided by the total number of PHA selected for inspection. To illustrate the sampling ratio would be 2.5 (40 total units, to produce a unit-weighted process for sampling buildings, 2 dwelling units divided by 16 target average. All of the project’s weighted examples are provided below: dwelling units). Since the target sample area scores are totaled and rounded Example #1. This first example uses a size is the lesser of either the dwelling using a rounding policy of rounding up project with 2 buildings where both unit sample size (16) or the number of to the nearest whole number a score buildings are selected for inspection. all residential buildings (22), 16 ending in 0.5 and above, and rounding Building A has 10 dwelling units and residential buildings would be down a score ending in 0.4 and below. building B has 20 dwelling units, for a inspected for this project. total of 30 dwelling units. The target In Phase 1 of sampling, the 2 14. Examples of Sampling Weights for dwelling unit sample size for a project buildings with 10 dwelling units are Buildings with 30 dwelling units is 15 units. The selected with certainty since they both As shown above, buildings with the sampling ratio for this project is two and have more than 2.5 dwelling units. Each most dwelling units have the greatest is calculated by dividing the 15 target of the scattered-site single family impact on the project’s overall physical units by the total number of units (30/ buildings then have a 40 percent score. Buildings with the most dwelling 15=2). In this illustration, every second probability of selection (100 percent or units also have the greatest likelihood of dwelling unit will be selected from the 1 divided by the 2.5 sampling ratio being selected for inspection. The random sort of the units within each equals 0.40). Assume that both large determination of which buildings will building. Since both buildings have at buildings and 8 of the single-family be inspected is a two-phase process. In least 2 dwelling units, both buildings buildings (10 buildings in all) were Phase 1 of the process, all buildings that are certain to be selected for inspection selected in Phase 1. This leaves 12 contain dwelling units are sorted by size in Phase 1. Since all buildings were single-family buildings available for and then the units are randomly sorted selected in Phase 1 of sampling, Phase selection during Phase 2. Since 16 within each building. A computer 2 is not required. Both buildings in this residential buildings need to be program selects a random sample of example have a selection probability of inspected, the sample of 10 buildings units to be inspected. 1.00 and a sampling weight of 1.00. selected in Phase 1 falls 6 buildings All buildings in a project may not be Example #2. This example uses a short of a full sample. Therefore, the selected in the building sample during project where only some of the system will select 6 of the 12 previously Phase 1 sampling, because a building buildings within the project are selected unselected buildings during Phase 2 may have so few units, such as a sole for inspection in Phase 1, so a Phase 2 sampling. The chance of any single scattered-site single-family unit. A sampling is required. For this example, building, of the 12 remaining buildings, Phase 2 sampling is used to increase the a project is comprised of 22 residential being selected during Phase 2 is 0.50 or

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50 percent (6 target buildings divided by The overall probability of any one of the during either Phase 1 or Phase 2 is 12 previously unselected buildings). 20 single-family units being selected calculated as follows:

Element Protocol Calculation

Phase 1 Single-family Unit Building Selection ...... 8 of 20 buildings ...... 8/20 = .40. Phase 2 Single-family Unit Building Selection ...... 6 of 12 buildings ...... 6/12 = .50. Overall Possibility of Single-family Unit Building Selec- 100% minus the 40% already selected during Phase 1 (1.00 ¥ .40) x .50 = .30. tion During Phase 2. and multiplied by the 50% chance of being selected during Phase 2. Overall Probability of a Single-family Unit Building Selec- Probability from Phase 1 added to probability from .40 + .30 = .70. tion. Phase 2. Verification—Overall Single-family Unit Building Selec- 14 of 20 buildings ...... 14/20 = .70. tion. Probability Weight* of Selection for Single-family Unit 1 divided by the overall probability of Single-family Unit 1.00/.70 = 1.43. Building Selection. Building Selection. See the note in the definitions section under ‘‘VI. The Physical Inspection Scoring Process’’ in this Appendix A for ‘‘normalized sub-area weight.’’

15. Accessibility Questions competitive, sealed bid sales, Loans will be included in the due HUD reviews particular elements commencing with the first sale offering diligence materials made available to during the physical inspection to (SFLS 2011–1). This notice also bidders. The Mortgage Loans will be determine possible indications of generally describes the bidding process sold without FHA insurance and with noncompliance with the Fair Housing for the sale and certain persons who are servicing released. HUD will offer Act (42 U.S.C. 3601–3619) and section ineligible to bid. The sales are qualified bidders an opportunity to bid 504 of the Rehabilitation Act of 1973 (29 scheduled for March 9, June 22 and competitively on the Mortgage Loans. September 14, 2011. U.S.C. 794). More specifically, during The Bidding Process the physical inspection, the inspector DATES: For the first sale action, the The BIP will describe in detail the will record if: (1) There is a wheelchair- Bidder’s Information Package (BIP) was procedure for bidding in SFLS 2011–1. accessible route to and from the main made available to qualified bidders on The BIP will also include a standardized ground floor entrance of the buildings February 9, 2011. Bids for the loans non-negotiable Conveyance, Assignment inspected; (2) the main entrance for must be submitted on the bid date, and Assumption Agreement (CAA every building inspected is at least 32 which is currently scheduled for March Agreement). Bidders will be required to inches wide, measured between the 9, 2011. HUD anticipates that award(s) submit a deposit with their bid. door and the opposite door jamb; (3) will be made on or about March 10, Deposits are calculated based upon each there is an accessible route to all 2011. bidder’s aggregate bid price. ADDRESSES: To become a qualified exterior common areas; and (4) for HUD will evaluate the bids submitted multi-story buildings that are inspected, bidder and receive the BIP, prospective bidders must complete, execute, and and determine the successful bid, in the interior hallways to all inspected terms of the best value to HUD, in its units and common areas are at least 36 submit a Confidentiality Agreement and a Qualification Statement acceptable to sole and absolute discretion. If a bidder inches wide. These items are recorded, is successful, the bidder’s deposit will but do not affect the score. HUD. Both documents will be available on the HUD Web site at: http:// be non-refundable and will be applied Dated: February 1, 2011. www.hud.gov/sfloansales. Please mail toward the purchase price. Deposits will Sandra B. Henriquez, and fax executed documents to HUD’s be returned to unsuccessful bidders. For Assistant Secretary for Public and Indian Asset Sales Office: Asset Sales Office, the first sale action, closings are Housing. United States Department of Housing expected to take place on March 30, [FR Doc. 2011–2633 Filed 2–18–11; 8:45 am] and Urban Development, 451 7th Street 2011 and May 5, 2011. BILLING CODE 4210–67–P SW., Room 3136, Washington, DC These are the essential terms of sale. 20410, Attention: Single Family Sale The CAA Agreement, which will be Coordinator, Fax: 202–708–2771. included in the BIP, will contain DEPARTMENT OF HOUSING AND additional terms and details. To ensure FOR FURTHER INFORMATION CONTACT: John URBAN DEVELOPMENT a competitive bidding process, the terms Lucey, Deputy Director, Asset Sales of the bidding process and the CAA [Docket No. FR–5502–N–01] Office, Room 3136, Department of Housing and Urban Development, 451 Agreement are not subject to Notice of Single Family Loan Sales Seventh Street, SW., Washington, DC negotiation. (SFLS 2011–1) 20410–8000; telephone 202–708–2625, Due Diligence Review extension 3927. Hearing- or speech- AGENCY: Office of the Assistant The BIP will describe how bidders Secretary for Housing—Federal Housing impaired individuals may call 202–708– may access the due diligence materials Commissioner, HUD. 4594 (TTY). These are not toll-free remotely via a high-speed Internet numbers. ACTION: Notice of sales of mortgage connection. loans. SUPPLEMENTARY INFORMATION: HUD announces its intention to sell in SFLS Mortgage Loan Sale Policy SUMMARY: This notice announces HUD’s 2011–1 certain unsubsidized non- HUD reserves the right to remove intention to sell certain unsubsidized performing mortgage loans (Mortgage Mortgage Loans from SFLS 2011–1 at single family mortgage loans, without Loans) secured by single family any time prior to the award date. HUD Federal Housing Administration (FHA) properties located throughout the also reserves the right to reject any and mortgage insurance, in a series of United States. A listing of the Mortgage all bids, in whole or in part, without

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prejudice to HUD’s right to include any (6) A individual or entity that uses the DEPARTMENT OF THE INTERIOR Mortgage Loans in a later sale. Mortgage services, directly or indirectly, of any Loans will not be withdrawn after the person or entity ineligible under Fish and Wildlife Service award date except as is specifically subparagraphs 1 through 3i above to provided in the CAA Agreement. [FWS–R6–ES–2011–N026; 60120–1113– assist in preparing any of its bids on the 0000–D2] This is a sale of unsubsidized Mortgage Loans; mortgage loans, which are to be (7) A individual or entity which Endangered and Threatened Wildlife assigned to HUD pursuant to section employs or uses the services of an and Plants; Permits 204(a)(1)(A) of the National Housing employee of HUD (other than in such Act, amended under Title VI of the AGENCY: Fish and Wildlife Service, Departments of Veterans Affairs and employee’s official capacity) who is Interior. involved in the Sales; Housing and Urban Development and ACTION: Notice of receipt of applications Independent Agencies Appropriations (8) A entity or individual that for permits. Act, 1999. The sale of the loans is serviced or held any Mortgage Loan at pursuant to section 204(g) of the Act. any time during the 2-year period prior SUMMARY: We announce our receipt of applications to conduct certain Mortgage Loan Sale Procedure to the bid is ineligible to bid on such Mortgage Loan or on the pool containing activities pertaining to enhancement of HUD selected a competitive sale as such Mortgage Loan, and survival of endangered species. The the method to sell the Mortgage Loans. Endangered Species Act requires that (9) A entity or individual that is: (a) This method of sale optimizes HUD’s we invite public comment on these return on the sale of these Mortgage Any affiliate or principal of any entity permit applications. or individual described in the preceding Loans, affords the greatest opportunity DATES: Written comments on this sentence (paragraph 8); (b) any for all qualified bidders to bid on the request for a permit must be received by Mortgage Loans, and provides the employee or subcontractor of such March 25, 2011. entity or individual during that 2-year quickest and most efficient vehicle for ADDRESSES: Submit written data or period; or (c) any entity or individual HUD to dispose of the Mortgage Loans. comments to the Assistant Regional that employs or uses the services of any Director-Ecological Services, U.S. Fish Bidder Eligibility other entity or individual described in and Wildlife Service, P.O. Box 25486, In order to bid in the sale, a this paragraph in preparing its bid on Denver Federal Center, Denver, CO prospective bidder must complete, such Mortgage Loan. 80225–0486; facsimile 303–236–0027. execute and submit both a SUPPLEMENTARY INFORMATION: Confidentiality Agreement and a Freedom of Information Act Requests Qualification Statement acceptable to HUD reserves the right, in its sole and Public Availability of Comments HUD. The following individuals and absolute discretion, to disclose Before including your address, phone entities are ineligible to bid on any of information regarding SFLS 2011–1, number, e-mail address, or other the Mortgage Loans included in SFLS including, but not limited to, the personal indentifying information in 2011–1: identity of any successful bidder and its your comment, you should be aware (1) An employee of HUD, a member bid price or bid percentage for any pool that your entire comment—including of such employee’s household, or an of loans or individual loan, upon the your personal identifying information— entity owned or controlled by any such closing of the sale of all the Mortgage may be made publicly available at any employee or member of such an Loans. Even if HUD elects not to time. While you can ask us in your employee’s household; publicly disclose any information comment to withhold your personal (2) An individual or entity that is identifying information from public debarred, suspended, or excluded from relating to SFLS 2011–1, HUD will have the right to disclose any information review, we cannot guarantee that we doing business with HUD pursuant to will be able to do so. Title 24 of the Code of Federal that HUD is obligated to disclose Regulations, Part 24, and Title 2 of the pursuant to the Freedom of Information Document Availability Act and all regulations promulgated Code of Federal Regulations, Part 2424; Documents and other information thereunder. (3) An individual or entity that has submitted with these applications are been suspended, debarred or otherwise Scope of Notice available for review, subject to the restricted by any Department or Agency requirements of the Privacy Act (5 of the Federal Government or of a State This notice applies to SFLS 2011–1 U.S.C. 552a) and Freedom of Government from doing business with and does not establish HUD’s policy for Information Act (5 U.S.C. 552), by any such Department or Agency. the sale of other mortgage loans. party who submits a request for a copy (4) An individual or entity that has Dated: February 17, 2011. of such documents within 30 days of the been debarred, suspended, or excluded date of publication of this notice to Kris David H. Stevens, from doing mortgage related business, Olsen, by mail (see ADDRESSES) or by including having a Business License Assistant Secretary for Housing—Federal telephone at 303–236–4256. All suspended, surrendered or revoked, by Housing Commissioner. comments we receive from individuals any federal, state or local government [FR Doc. 2011–4029 Filed 2–22–11; 8:45 am] become part of the official public agency, division or department; BILLING CODE 4210–67–P record. (5) A contractor, subcontractor and/or consultant or advisor (including any Applications agent, employee, partner, director, The following applicants have principal or affiliate of any of the requested issuance of enhancement of foregoing) who performed services for or survival permits to conduct certain on behalf of HUD in connection with activities with endangered species the Sales; pursuant to Section 10(a)(1)(A) of the

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Endangered Species Act of 1973, as recovery activities throughout the SUPPLEMENTARY INFORMATION: The 12- amended (16 U.S.C. 1531 et seq.). species’ range for the purpose of member council advises the Secretary of Applicant: Craig D. Miller, Boulder, enhancing its survival and recovery. the Interior, through the BLM, on a Colorado, TE–040571. The applicant Applicant: Steven Wall, Volga, South variety of planning and management requests a renewed permit to take Dakota, TE–121908. The applicant issues associated with public land Southwestern willow flycatcher requests a renewed permit to take management in Central California. At (Empidonax traillii extimus) in Topeka shiner (Notropis topeka) in this meeting, agenda topics will include conjunction with recovery activities conjunction with recovery activities an update on Resource Management throughout the species’ range for the throughout the species’ range for the Plans and other resource management purpose of enhancing its survival and purpose of enhancing its survival and issues. Additional ongoing business will recovery. recovery. be discussed by the council. All Applicant: Mark Peyton, Central Applicant: Jay P. Gilbertson, East meetings are open to the public. Nebraska Public Power and Irrigation Dakota Water Development District, Members of the public may present District, Gothenburg, Nebraska, TE– Brookings, South Dakota, TE–056001. written comments to the council. Each 038221. The applicant requests a The applicant requests a renewed formal council meeting will have time renewed permit to take piping plover permit to take Topeka shiner (Notropis allocated for public comments. (Charadrius melodus), interior least tern topeka) in conjunction with recovery Depending on the number of persons (Sterna antillarum), and American activities throughout the species’ range wishing to speak, and the time burying beetle (Nicrophorus for the purpose of enhancing its survival available, the time for individual americanus) in conjunction with and recovery. comments may be limited. The meeting recovery activities throughout the and tour are open to the public, but species’ range for the purpose of Dated: February 11, 2011. Noreen E. Walsh, individuals who wish to attend the tour enhancing its survival and recovery. must provide their own vehicles, food Deputy Regional Director, Denver, Colorado. Applicant: Kevin Bestgen, Colorado and water. Individuals who plan to State University, Ft. Collins, Colorado, [FR Doc. 2011–3933 Filed 2–22–11; 8:45 am] attend and need special assistance, such TE–046795. The applicant requests a BILLING CODE 4310–55–P as sign language interpretation and renewed permit to take Colorado other reasonable accommodations, pikeminnow (Ptychocheilus lucius) and should contact the BLM as provided razorback sucker (Xyrauchen texanus) DEPARTMENT OF THE INTERIOR above. in conjunction with recovery activities throughout the species’ range for the Bureau of Land Management Dated: February 9, 2011. purpose of enhancing its survival and David Christy, recovery. [LLCAC01000 L10100000.XZ0000 Public Affairs Officer. Applicant: Randy Rieches, San Diego LXSIOVHD0000] [FR Doc. 2011–4042 Filed 2–22–11; 8:45 am] Wild Animal Park, Escondido, BILLING CODE 4310–40–P California, TE–051835. The applicant Notice of Public Meeting of the Central requests a renewed permit to take black- California Resource Advisory Council footed ferret (Mustela nigripes) in AGENCY: Bureau of Land Management, DEPARTMENT OF JUSTICE conjunction with recovery activities Interior. throughout the species’ range for the [OMB Number 1103–0102] purpose of enhancing its survival and ACTION: Notice of public meeting. recovery. SUMMARY: In accordance with the Agency Information Collection Applicant: William Sloan, National Federal Land Policy and Management Activities: Extension of a Previously Park Service, Moab, Utah, TE–047808. Act and the Federal Advisory Approved Collection; Comments The applicant requests a renewed Committee Act of 1972, the U.S. Requested permit to take Southwestern willow Department of the Interior, Bureau of flycatcher (Empidonax traillii extimus) Land Management (BLM) Central ACTION: 30-Day Notice of Information in conjunction with recovery activities California Resource Advisory Council Collection Under Review: COPS throughout the species’ range for the (RAC) will meet as indicated below. Progress Report. purpose of enhancing its survival and recovery. DATES: A business meeting will be held The Department of Justice (DOJ) Applicant: Sam Stukel, South Dakota Friday, April 8, 2011, at the Seaman’s Office of Community Oriented Policing Game, Fish, and Parks, Yankton, South Lodge in Pioneer Park, 425A Nimrod Services (COPS) will be submitting the Dakota, TE–124904. The applicant St., Nevada City, beginning at 8 a.m., following information collection request requests a renewed permit to take pallid followed by a field trip that afternoon to to the Office of Management and Budget sturgeon (Scaphirhynchus albus) in BLM lands in Nevada County. Members (OMB) for review and approval in conjunction with recovery activities of the public are welcome to attend the accordance with the Paperwork throughout the species’ range for the field trip and meeting. Field trip Reduction Act of 1995. The proposed purpose of enhancing its survival and participants must provide their own information collection is published to recovery. transportation and lunch. obtain comments from the public and Applicant: Robert Muth, U.S. Fish On April 9, the meeting will resume affected agencies. This proposed and Wildlife Service, Bozeman Fish at 8 a.m. at Seaman’s Lodge. Time for information collection was previously Technology Center, Bozeman, Montana, public comment is reserved from 9 a.m. published in the Federal Register TE–038970. The applicant requests a to 10 a.m. Volume 75, Number 239, pages 22904– renewed permit to take pallid sturgeon FOR FURTHER INFORMATION CONTACT: 22905, on December 14, 2010, allowing (Scaphirhynchus albus), June sucker BLM Central California District Manager for a 60 day comment period. (Chasmistes liorus), bonytail (Gila Kathy Hardy, (916) 978–4626; or BLM The purpose of this notice is to allow elegans), and woundfin (Plagopterus Public Affairs Officer David Christy, for 30 days for public comment until argentissimus) in conjunction with (916) 941–3146. March 25, 2011. This process is

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conducted in accordance with 5 CFR of Community Oriented Policing process is conducted in accordance with 1320.10. Services. 5 CFR 1320.10. If you have comments especially on (4) Affected public who will be asked If you have comments, especially on the estimated public burden or or required to respond, as well as a brief the estimated public burden or associated response time, suggestions, abstract: Primary: Law enforcement and associated response time, suggestions, or need a copy of the proposed public safety agencies, institutions of or need a copy of the proposed information collection instrument with higher learning and non-profit information collection instrument with instructions or additional information, organizations that are recipients of instructions or additional information, please contact Ashley Hoornstra, COPS hiring or non-hiring grants. please contact Ashley Hoornstra, Department of Justice Office of (5) An estimate of the total number of Department of Justice Office of Community Oriented Policing Services, respondents and the amount of time Community Oriented Policing Services, 145 N Street, NE., Washington, DC estimated for an average respondent to 145 N Street, NE., Washington, DC 20530. respond/reply: It is estimated that 20530. Written comments concerning this approximately 7,400 annual, quarterly, Written comments concerning this information collection should be sent to and final report respondents can information collection should be sent to the Office of Information and Regulatory complete the report in an average of 30 the Office of Information and Regulatory Affairs, Office of Management and minutes. Affairs, Office of Management and Budget, Attn: DOJ Desk Officer. The best (6) An estimate of the total public Budget, Attn: DOJ Desk Officer. The best way to ensure your comments are burden (in hours) associated with the way to ensure your comments are received is to e-mail them to collection: 3,700 total burden hours. received is to e-mail them to _ _ oira [email protected] or fax If additional information is required oira [email protected] or fax them to 202–395–7285. All comments contact: Lynn Murray, Department them to 202–395–7285. All comments should reference the 8 digit OMB Clearance Officer, United States should reference the 8 digit OMB number for the collection or the title of Department of Justice, Justice number for the collection or the title of the collection. If you have questions Management Division, Policy and the collection. If you have questions concerning the collection, please call Planning Staff, Two Constitution concerning the collection, please call Ashley Hoornstra at 202–616–1314 or Square, 145 N Street, NE., Suite 2E–502, Ashley Hoornstra at 202–616–1314 or the DOJ Desk Officer at 202–395–3176. Washington, DC 20530. the DOJ Desk Officer at 202–395–3176. Written comments and suggestions Written comments and suggestions from the public and affected agencies Dated: February 16, 2011. from the public and affected agencies concerning the proposed collection of Lynn Murray, concerning the proposed collection of information are encouraged. Your Department Clearance Officer, PRA, U.S. information are encouraged. Your comments should address one or more Department of Justice. comments should address one or more of the following four points: [FR Doc. 2011–3950 Filed 2–16–11; 8:45 am] of the following four points: —Evaluate whether the proposed BILLING CODE 4410–AT–P —Evaluate whether the proposed collection of information is necessary collection of information is necessary for the proper performance of the for the proper performance of the functions of the agency, including DEPARTMENT OF JUSTICE functions of the agency, including whether the information will have whether the information will have practical utility; [OMB Number 1103–0098] practical utility; —Evaluate the accuracy of the agency’s —Evaluate the accuracy of the agency’s estimate of the burden of the Agency Information Collection estimate of the burden of the proposed collection of information, Activities: Revision of a Previously proposed collection of information, including the validity of the Approved Collection, With Change; including the validity of the methodology and assumptions used; Comments Requested methodology and assumptions used; —Enhance the quality, utility, and —Enhance the quality, utility, and clarity of the information to be ACTION: 30-Day Notice of Information clarity of the information to be collected; and Collection Under Review: COPS collected; and —Minimize the burden of the collection Application Package. —Minimize the burden of the collection of information on those who are to of information on those who are to respond, including through the use of The Department of Justice (DOJ) respond, including through the use of appropriate automated, electronic, Office of Community Oriented Policing appropriate automated, electronic, mechanical, or other technological Services (COPS), will be submitting the mechanical, or other technological collection techniques or other forms following information collection request collection techniques or other forms of information technology, e.g., to the Office of Management and Budget of information technology, e.g., permitting electronic submission of (OMB) for review and approval in permitting electronic submission of responses. accordance with the Paperwork responses. Reduction Act of 1995. The proposed Overview of This Information information collection is published to Overview of This Information Collection obtain comments from the public and Collection (1) Type of Information Collection: affected agencies. This proposed (1) Type of Information Collection: Extension of a previously approved information collection was previously Revision of a previously approved collection; comments requested. published in the Federal Register collection, with change. (2) Title of the Form/Collection: COPS Volume 75, Number 233, page 75697 on (2) Title of the Form/Collection: COPS Progress Report. December 6, 2010, allowing for a 60-day Application Package. (3) Agency form number, if any, and comment period. (3) Agency form number, if any, and the applicable component of the The purpose of this notice is to allow the applicable component of the Department sponsoring the collection: for an additional 30 days for public Department sponsoring the collection: None. U.S. Department of Justice Office comment until March 25, 2011. This None. U.S. Department of Justice Office

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of Community Oriented Policing information collection was previously (4) Affected public who will be asked Services. published in the Federal Register or required to respond, as well as a brief (4) Affected public who will be asked Volume 75, Number 240, page 78268 on abstract: Primary: Business or other for- or required to respond, as well as a brief December 15, 2010, allowing for a 60 profit. Other: none. Abstract: The abstract: Law enforcement agencies and day comment period. collection of information will be used to other public and private entities that The purpose of this notice is to allow determine the lawful existence and apply for COPS Office grants or for an additional 30 days for public validity of a legal entity before ATF cooperative agreements will be asked to comment until March 25, 2011. This approves the transfer of an NFA firearm complete the COPS Application process is conducted in accordance with to that entity. Package. The COPS Application Package 5 CFR 1320.10. To ensure that (5) An estimate of the total number of includes all of the necessary forms and comments on the information collection respondents and the amount of time instructions that an applicant needs to are received, OMB recommends that estimated for an average respondent to review and complete to apply for COPS written comments be faxed to the Office respond: It is estimated that 5000 grant funding. The package is used as a of Information and Regulatory Affairs, respondents will spend approximately standard template for all COPS OMB, Attn: DOJ Desk Officer, Fax 202– 30 minutes to compile documentation programs. 395–7285, or e-mailed to requested by the letter. (5) An estimate of the total number of [email protected]. All (6) An estimate of the total burden (in respondents and the amount of time comments should be identified with the hours) associated with the collection: estimated for an average respondent to OMB control number [1140–xxxx]. Also There are an estimated 5,000 total respond/reply: It is estimated that include the DOJ docket number found burden hours associated with this 14,100 respondents annually will in brackets in the heading of this collection. complete the form within 11.3 hours. document. If you have questions If additional information is required (6) An estimate of the total public concerning the collection, please contact: Lynn Murray, Department burden (in hours) associated with the contact Gary Schaible, Clearance Officer, United States collection: There are an estimated [email protected] or the DOJ Desk Department of Justice, Policy and 159,330 total annual burden hours Officer at 202–395–3176. Planning Staff, Justice Management associated with this collection. Written comments and suggestions Division, Room 2E–502, Two If additional information is required from the public and affected agencies Constitution Square, 145 N Street, NE., contact: Lynn Murray, Department concerning the proposed collection of Washington, DC 20530. Clearance Officer, United States information are encouraged. Your Dated: February 16, 2011. Department of Justice, Justice comments should address one or more Lynn Murray, Management Division, Policy and of the following four points: Planning Staff, Two Constitution Department Clearance Officer, PRA, United —Evaluate whether the proposed States Department of Justice. Square, 145 N Street, NE., Suite 2E–502, collection of information is necessary [FR Doc. 2011–3953 Filed 2–22–11; 8:45 am] Washington, DC 20530. for the proper performance of the BILLING CODE 4410–FY–P Dated: February 16, 2011. functions of the agency, including Lynn Murray, whether the information will have Department Clearance Officer, PRA, U.S practical utility; DEPARTMENT OF JUSTICE Department of Justice. —Evaluate the accuracy of the agency’s [FR Doc. 2011–3951 Filed 2–22–11; 8:45 am] estimate of the burden of the Bureau of Alcohol, Tobacco, Firearms BILLING CODE 4410–AT–P proposed collection of information, and Explosives including the validity of the [OMB Number 1140–0078] methodology and assumptions used; DEPARTMENT OF JUSTICE —Enhance the quality, utility, and Agency Information Collection clarity of the information to be Activities: Proposed Collection; Bureau of Alcohol, Tobacco, Firearms, collected; and Comments Requested and Explosives —Minimize the burden of the collection of information on those who are to [OMB Number 1140–NEW] ACTION: 30-Day Notice of Information respond, including through the use of Collection Under Review: Limited Agency Information Collection appropriate automated, electronic, Permittee Transaction Record. Activities: Proposed Collection; mechanical, or other technological The Department of Justice (DOJ), Comments Requested collection techniques or other forms of information technology, e.g., Bureau of Alcohol, Tobacco, Firearms ACTION: 30-Day Notice of Information permitting electronic submission of and Explosives (ATF) will be submitting Collection Under Review: Letter responses. the following information collection Requesting Supporting Documents request to the Office of Management and Overview of This Information Identifying a Legal Entity. Budget (OMB) for review and approval Collection in accordance with the Paperwork The Department of Justice (DOJ), (1) Type of Information Collection: Reduction Act of 1995. The proposed Bureau of Alcohol, Tobacco, Firearms, New. information collection is published to and Explosives (ATF) will be submitting (2) Title of the Form/Collection: Letter obtain comments from the public and the following information collection Requesting Supporting Documents affected agencies. This proposed request to the Office of Management and Identifying a Legal Entity. information collection was previously Budget (OMB) for review and approval (3) Agency form number, if any, and published in the Federal Register in accordance with the Paperwork the applicable component of the Volume 75, Number 239, page 77905 on Reduction Act of 1995. The proposed Department of Justice sponsoring the December 14, 2010, allowing for a 60 information collection is published to collection: Form Number: None. Bureau day comment period. obtain comments from the public and of Alcohol, Tobacco, Firearms and The purpose of this notice is to allow affected agencies. This proposed Explosives. for an additional 30 days for public

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comment until March 25, 2011. This necessary and to ensure that limited 4. On the same page, in the third process is conducted in accordance with permittees do not exceed their column, in the fifth line of the second 5 CFR 1320.10. To ensure that maximum allotment of receipts of paragraph, ‘‘INCA’’ should read ‘‘IMCA’’. comments on the information collection explosive materials. 5. On the same page, in the third are received, OMB recommends that (5) An estimate of the total number of column, in the first line of the third written comments be faxed to the Office respondents and the amount of time paragraph, ‘‘INCA’’ should read ‘‘IMCA’’. of Information and Regulatory Affairs, estimated for an average respondent to [FR Doc. C1–2011–2412 Filed 2–22–11; 8:45 am] OMB, Attn: DOJ Desk Officer, Fax: 202– respond: There will be an estimated BILLING CODE 1505–01–D 395–7285, or be e-mailed to 5,000 respondents, who will spend _ oira [email protected]. All approximately 5 minutes to receive, file, comments should be identified with the and forward the appropriate DEPARTMENT OF JUSTICE OMB control number [1140–0078]. Also, documentation. include the DOJ docket number found Drug Enforcement Administration (6) An estimate of the total burden (in in brackets in the heading of this hours) associated with the collection: document. If you have questions Importer of Controlled Substances; There are an estimated 12,000 total concerning the collection, please Notice of Application burden hours associated with this contact William Miller, collection. Pursuant to 21 U.S.C. 958(i), the [email protected] or the DOJ Desk Attorney General shall, prior to issuing Officer at 202–395–3176. If additional information is required contact: Lynn Murray, Department a registration under this Section to a Written comments and suggestions bulk manufacturer of a controlled from the public and affected agencies Clearance Officer, United States Department of Justice, Policy and substance in schedule I or II, and prior concerning the proposed collection of to issuing a regulation under 21 U.S.C. information are encouraged. Your Planning Staff, Justice Management Division, Two Constitution Square, 952(a)(2) authorizing the importation of comments should address one or more such a substance, provide of the following four points: Room 2E–502, 145 N Street, NE., Washington, DC 20530. manufacturers holding registrations for —Evaluate whether the proposed the bulk manufacture of the substance collection of information is necessary Dated: February 16, 2011. an opportunity for a hearing. for the proper performance of the Lynn Murray, Therefore, in accordance with 21 CFR functions of the agency, including Department Clearance Officer, PRA, United 1301.34(a), this is notice that on January whether the information will have States Department of Justice. 4, 2011, Sigma Aldrich Manufacturing practical utility; [FR Doc. 2011–3952 Filed 2–22–11; 8:45 am] LLC., 3500 Dekalb Street, St. Louis, —Evaluate the accuracy of the agency’s BILLING CODE 4410–FY–P Missouri 63118, made application by estimate of the burden of the renewal to the Drug Enforcement proposed collection of information, Administration (DEA) to be registered as including the validity of the DEPARTMENT OF JUSTICE an importer of the following basic methodology and assumptions used; classes of controlled substances: —Enhance the quality, utility, and Antitrust Division clarity of the information to be Drug Schedule collected; and Notice Pursuant to the National —Minimize the burden of the collection Cooperative Research and Production Cathinone (1235) ...... I of information on those who are to Act of 1993—Industrial Methcathinone (1237) ...... I respond, including through the use of Macromolecular Crystallography Aminorex (1585) ...... I appropriate automated, electronic, Association Gamma Hydroxybutyric Acid I (2010). mechanical, or other technological Correction Methaqualone (2565) ...... I collection techniques or other forms Alpha-ethyltryptamine (7249) ...... I of information technology, e.g., In notice document 2011—2412 Ibogaine (7260) ...... I permitting electronic submission of appearing on page 6497 in the issue of Lysergic acid diethylamide (7315) I responses. Friday, February 4, 2011, make the Marihuana (7360) ...... I following corrections: Tetrahydrocannabinols (7370) ..... I Overview of This Information Mescaline (7381) ...... I Collection 1. On page 6497, in the second 4-Bromo-2,5- I column, in the document’s subject, dimethoxyamphetamine (7391). (1) Type of Information Collection: ‘‘Notice Pursuant to the National Extension of a currently approved 4-Bromo-2,5- I Cooperative Research and Production dimethoxyphenethylamine collection. Act of 1993—Industrial Nacromolecular (7392). (2) Title of the Form/Collection: Crystallography Association’’ should 4-Methyl-2,5- I Limited Permittee Transaction Record. dimethoxyamphetamine (7395). (3) Agency form number, if any, and read ‘‘Notice Pursuant to the National Cooperative Research and Production 2,5-Dimethoxyamphetamine I the applicable component of the (7396). Department of Justice sponsoring the Act of 1993—Industrial Macromolecular 3,4-Methylenedioxyamphetamine I collection: Form Number: None. Bureau Crystallography Association’’. (7400). of Alcohol, Tobacco, Firearms and 2. On the same page, in the second N-Hydroxy-3,4- I Explosives. column, in the fourth line from the methylenedioxyamphetamine (4) Affected public who will be asked bottom, ‘‘Industrial Nacromolecular’’ (7402). or required to respond, as well as a brief should read ‘‘Industrial 3,4-Methylenedioxy-N- I Macromolecular.’’ ethylamphetamine (7404). abstract: Primary: Business or other for- 3,4- I profit. Other: Individuals or households. 3. On the same page, in the second Methylenedioxymethamphetam- Abstract: The purpose of this collection column, in the third line from the ine (MDMA) (7405). is to ensure that records are available for bottom, ‘‘(‘‘INCA’’)’’ should read 4-Methoxyamphetamine (7411) ... I tracing explosive materials when ‘‘(‘‘IMCA’’)’’. Bufotenine (7433) ...... I

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Drug Schedule registration to import a basic class of Dated: February 15, 2011. any controlled substance in schedule I Joseph T. Rannazzisi, Diethyltryptamine (7434) ...... I or II are, and will continue to be, Deputy Assistant Administrator, Office of Dimethyltryptamine (7435) ...... I required to demonstrate to the Deputy Diversion Control, Drug Enforcement Psilocybin (7437) ...... I Assistant Administrator, Office of Administration. Psilocyn (7438) ...... I [FR Doc. 2011–3948 Filed 2–22–11; 8:45 am] 1-[1-(2- I Diversion Control, Drug Enforcement Thienyl)cyclohexyl]piperidine Administration, that the requirements BILLING CODE 4410–09–P (7470). for such registration pursuant to 21 N-Benzylpiperazine (BZP) (7493) I U.S.C. 958(a); 21 U.S.C. 823(a); and 21 Heroin (9200) ...... I CFR 1301.34(b), (c), (d), (e), and (f) are DEPARTMENT OF JUSTICE Normorphine (9313) ...... I satisfied. Etonitazene (9624) ...... I Drug Enforcement Administration Amphetamine (1100) ...... II Dated: February 15, 2011. Methamphetamine (1105) ...... II Joseph T. Rannazzisi, Manufacturer of Controlled Methylphenidate (1724) ...... II Substances; Notice of Application Deputy Assistant Administrator, Office of Amobarbital (2125) ...... II Diversion Control, Drug Enforcement Pentobarbital (2270) ...... II Administration. Pursuant to § 1301.33(a), Title 21 of Secobarbital (2315) ...... II the Code of Federal Regulations (CFR), [FR Doc. 2011–3945 Filed 2–22–11; 8:45 am] Glutethimide (2550) ...... II this is notice that on January 6, 2011, Nabilone (7379) ...... II BILLING CODE 4410–09–P Johnson Matthey Pharmaceutical Phencyclidine (7471) ...... II Cocaine (9041) ...... II Materials Inc., Pharmaceutical Service, 25 Patton Road, Devens, Massachusetts Codeine (9050) ...... II DEPARTMENT OF JUSTICE Diprenorphine (9058) ...... II 01434, made application by renewal to Oxycodone (9143) ...... II Drug Enforcement Administration the Drug Enforcement Administration Hydromorphone (9150) ...... II (DEA) to be registered as a bulk Diphenoxylate (9170) ...... II Importer of Controlled Substances; manufacturer of the following basic Ecgonine (9180) ...... II classes of controlled substances: Ethylmorphine (9190) ...... II Notice of Registration Hydrocodone (9193) ...... II Drug Schedule Levorphanol (9220) ...... II By Notice dated November 1, 2010, Meperidine (9230) ...... II and published in the Federal Register Amphetamine (1100) ...... II Methadone (9250) ...... II on November 12, 2010, 75 FR 69461, Methylphenidate (1724) ...... II Morphine (9300) ...... II Wildlife Laboratories, 1401 Duff Drive, Nabilone (7379) ...... II Thebaine (9333) ...... II Suite 400, Fort Collins, Colorado 80524, Alfentanil (9737) ...... II Opium, powdered (9639) ...... II made application by renewal to the Sufentanil (9740) ...... II Levo-alphacetylmethadol (9648) .. II Hydrocodone (9193) ...... II Oxymorphone (9652) ...... II Drug Enforcement Administration Fentanyl (9801) ...... II (DEA) to be registered as an importer of Etorphine Hydrochloride (9059), a basic The company plans to utilize this The company plans to import the class of controlled substance listed in facility to manufacture small quantities listed controlled substances for sale to schedule II. of the listed controlled substances in research facilities for drug testing and The company plans to import the bulk and to conduct analytical testing in analysis. listed controlled substance for sale to its support of the company’s primary Any bulk manufacturer who is customer. manufacturing facility in West Deptford, presently, or is applying to be, New Jersey. The controlled substances registered with DEA to manufacture No comments or objections have been manufactured in bulk at this facility will such basic classes of controlled received. DEA has considered the be distributed to the company’s substances may file comments or factors in 21 U.S.C. 823(a) and § 952(a) customers. and determined that the registration of objections to the issuance of the Any other such applicant, and any Wildlife Laboratories to import the basic proposed registration and may, at the person who is presently registered with class of controlled substance is same time, file a written request for a DEA to manufacture such substances, consistent with the public interest and hearing on such application pursuant to may file comments or objections to the 21 CFR 1301.43, and in such form as with United States obligations under issuance of the proposed registration prescribed by 21 CFR 1316.47. international treaties, conventions, or pursuant to 21 CFR 1301.33(a). Any such comments or objections protocols in effect on May 1, 1971. DEA Any such written comments or should be addressed, in quintuplicate, has investigated Wildlife Laboratories to objections should be addressed, in to the Drug Enforcement ensure that the company’s registration is quintuplicate, to the Drug Enforcement Administration, Office of Diversion consistent with the public interest. The Administration, Office of Diversion Control, Federal Register Representative investigation has included inspection Control, Federal Register Representative (ODL), 8701 Morrissette Drive, and testing of the company’s physical (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be security systems, verification of the Springfield, Virginia 22152; and must be filed no later than [insert date 30 days company’s compliance with State and filed no later than April 25, 2011. from date of publication]. local laws, and a review of the This procedure is to be conducted company’s background and history. Dated: February 15, 2011. simultaneously with, and independent Therefore, pursuant to 21 U.S.C. 952(a) Joseph T. Rannazzisi, of, the procedures described in 21 CFR and 958(a), and in accordance with 21 Deputy Assistant Administrator, Office of 1301.34(b), (c), (d), (e), and (f). As noted CFR 1301.34, the above named company Diversion Control, Drug Enforcement in a previous notice published in the is granted registration as an importer of Administration. Federal Register on September 23, 1975, the basic class of controlled substance [FR Doc. 2011–3928 Filed 2–22–11; 8:45 am] (40 FR 43745–46), all applicants for listed. BILLING CODE 4410–09–P

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DEPARTMENT OF JUSTICE a bulk manufacturer of the following and in accordance with 21 CFR 1301.33, basic classes of controlled substances: the above named company is granted Drug Enforcement Administration registration as a bulk manufacturer of Drug Schedule the basic classes of controlled Manufacturer of Controlled substances listed. Substances Notice of Registration Gamma Hydroxybutyric Acid I (2010). Dated: February 15, 2011. By Notice dated October 14, 2010, and Methaqualone (2565) ...... I Joseph T. Rannazzisi, published in the Federal Register on Ibogaine (7260) ...... I Deputy Assistant Administrator, Office of October 26, 2010, 75 FR 65659, Chemic Tetrahydrocannabinols (7370) ..... I Diversion Control, Drug Enforcement Laboratories, Inc., 480 Neponset Street, 2,5-Dimethoxyamphetamine I Administration. (7396). Building 7, Canton, Massachusetts [FR Doc. 2011–3927 Filed 2–22–11; 8:45 am] Psilocyn (7438) ...... I 02021, made application by renewal to BILLING CODE 4410–09–P the Drug Enforcement Administration Normorphine (9313) ...... I (DEA) to be registered as a bulk Acetylmethadol (9601) ...... I Alphacetylmethadol except levo– I manufacturer of Cocaine (9041), a basic alphacetylmethadol (9603). DEPARTMENT OF JUSTICE class of controlled substance listed in Normethadone (9635) ...... I schedule II. Norpipanone (9636) ...... I Drug Enforcement Administration The company plans to manufacture 3-Methylfentanyl (9813) ...... I small quantities of the above listed Amphetamine (1100) ...... II Manufacturer of Controlled controlled substance for distribution to Methamphetamine (1105) ...... II Substances; Notice of Registration its customers for the purpose of Methylphenidate (1724) ...... II By Notice dated October 19, 2010, and research. Amobarbital (2125) ...... II No comments or objections have been Pentobarbital (2270) ...... II published in the Federal Register on received. DEA has considered the Secobarbital (2315) ...... II October 26, 2010, 75 FR 65659, Johnson factors in 21 U.S.C. 823(a) and 1-Phenylcyclohexylamine (7460) II Matthey Inc., Custom Pharmaceuticals Phencyclidine (7471) ...... II determined that the registration of Department, 2003 Nolte Drive, West Phenylacetone (8501) ...... II Deptford, New Jersey 08066–1742, made Chemic Laboratories to manufacture the 1-Piperidinocyclohexanecarbo- II listed basic class of controlled substance application by renewal to the Drug nitrile (8603). Enforcement Administration (DEA) to is consistent with the public interest at Cocaine (9041) ...... II this time. DEA has investigated Chemic Codeine (9050) ...... II be registered as a bulk manufacturer of Laboratories to ensure that the Oxycodone (9143) ...... II the following basic classes of controlled company’s registration is consistent Hydromorphone (9150) ...... II substances: with the public interest. The Benzoylecgonine (9180) ...... II Drug Schedule investigation has included inspection Ethylmorphine (9190) ...... II Hydrocodone (9193) ...... II and testing of the company’s physical Isomethadone (9226) ...... II Gamma Hydroxybutyric Acid I security systems, verification of the Meperidine (9230) ...... II (2010). company’s compliance with state and Meperidine intermediate-A (9232) II Tetrahydrocannabinols (7370) ..... I local laws, and a review of the Meperidine intermediate-B (9233) II Dihydromorphine (9145) ...... I company’s background and history. Methadone (9250) ...... II Difenoxin (9168) ...... I Therefore, pursuant to 21 U.S.C. 823, Methadone intermediate (9254) ... II Propiram (9649) ...... I and in accordance with 21 CFR 1301.33, Dextropropoxyphene, bulk, (non- II Amphetamine (1100) ...... II dosage forms) (9273). Methamphetamine (1105) ...... II the above-named company is granted Lisdexamfetamine (1205) ...... II registration as a bulk manufacturer of Morphine (9300) ...... II Thebaine (9333) ...... II Methylphenidate (1724) ...... II the basic class of controlled substance Levo-alphacetylmethadol (9648) .. II Nabilone (7379) ...... II listed. Oxymorphone (9652) ...... II Cocaine (9041) ...... II Dated: February 15, 2011. Codeine (9050) ...... II Dihydrocodeine (9120) ...... II Joseph T. Rannazzisi, The company plans to manufacture Oxycodone (9143) ...... II Deputy Assistant Administrator, Office of small quantities of the listed controlled Hydromorphone (9150) ...... II Diversion Control, Drug Enforcement substances to produce isotope labeled Ecgonine (9180) ...... II Administration. standards for drug testing and analysis. Hydrocodone (9193) ...... II [FR Doc. 2011–3929 Filed 2–22–11; 8:45 am] No comments or objections have been Meperidine (9230) ...... II BILLING CODE 4410–09–P received. DEA has considered the Methadone (9250) ...... II factors in 21 U.S.C. 823(a) and Methadone intermediate (9254) ... II determined that the registration of Morphine (9300) ...... II DEPARTMENT OF JUSTICE Aldrich Chemical Company Inc. to Thebaine (9333) ...... II manufacture the listed basic classes of Oxymorphone (9652) ...... II Drug Enforcement Administration Noroxymorphone (9668) ...... II controlled substances is consistent with Alfentanil (9737) ...... II the public interest at this time. DEA has Manufacturer of Controlled Remifentanil (9739) ...... II investigated Aldrich Chemical Company Substances; Notice of Registration Sufentanil (9740) ...... II Inc. to ensure that the company’s Fentanyl (9801) ...... II By Notice dated October 19, 2010, and registration is consistent with the public published in the Federal Register on interest. The investigation has included The company plans to manufacture October 26, 2010, 75 FR 65658, Aldrich inspection and testing of the company’s the listed controlled substances in bulk Chemical Company, Inc., DBA Isotec, physical security systems, verification for sale to its customers. 3858 Benner Road, Miamisburg, Ohio of the company’s compliance with state No comments or objections have been 45342–4304, made application by and local laws, and a review of the received. DEA has considered the renewal to the Drug Enforcement company’s background and history. factors in 21 U.S.C. 823(a) and Administration (DEA) to be registered as Therefore, pursuant to 21 U.S.C. 823(a), determined that the registration of

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Johnson Matthey Inc. to manufacture investigation has included inspection Parole Commission, 5550 Friendship the listed basic classes of controlled and testing of the company’s physical Boulevard, 4th Floor, Chevy Chase, substances is consistent with the public security systems, verification of the Maryland 20815. The purpose of the interest at this time. DEA has company’s compliance with state and meeting was to decide four petitions for investigated Johnson Matthey Inc. to local laws, and a review of the reconsideration pursuant to 28 CFR ensure that the company’s registration is company’s background and history. Section 2.27 and one pursuant to 28 consistent with the public interest. The Therefore, pursuant to 21 U.S.C. 823(a), CFR Section 2.17. Four Commissioners investigation has included inspection and in accordance with 21 CFR 1301.33, were present, constituting a quorum and testing of the company’s physical the above named company is granted when the vote to close the meeting was security systems, verification of the registration as a bulk manufacturer of submitted. company’s compliance with state and the basic classes of controlled Public announcement further local laws, and a review of the substances listed. describing the subject matter of the meeting and certifications of General company’s background and history. Dated: February 16, 2011. Therefore, pursuant to 21 U.S.C. 823(a), Counsel that this meeting may be closed Joseph T. Rannazzisi, and in accordance with 21 CFR 1301.33, by vote of the Commissioners present the above named company is granted Deputy Assistant Administrator, Office of were submitted to the Commissioners registration as a bulk manufacturer of Diversion Control, Drug Enforcement prior to the conduct of any other Administration. the basic classes of controlled business. Upon motion duly made, substances listed. [FR Doc. 2011–3924 Filed 2–22–11; 8:45 am] seconded, and carried, the following BILLING CODE 4410–09–P Dated: February 15, 2011. Commissioners voted that the meeting be closed: Isaac Fulwood, Cranston J. Joseph T. Rannazzisi, Mitchell, Patricia Cushwa and J. Patricia Deputy Assistant Administrator, Office of DEPARTMENT OF JUSTICE Wilson Smoot. Diversion Control, Drug Enforcement Administration. Parole Commission In witness whereof, I make this official record of the vote taken to close this [FR Doc. 2011–3925 Filed 2–22–11; 8:45 am] [5 U.S.C. Section 552b] meeting and authorize this record to be BILLING CODE 4410–09–P made available to the public. Meetings; Sunshine Act; Public Announcement Pursuant to the Dated: February 11, 2011. DEPARTMENT OF JUSTICE Government in the Sunshine Act Isaac Fulwood, Public Law 94–409 Chairman, U.S. Parole Commission. Drug Enforcement Administration [FR Doc. 2011–3891 Filed 2–22–11; 8:45 am] AGENCY HOLDING MEETING: Department of Manufacturer of Controlled BILLING CODE 4410–01–M Justice, United States Parole Substances; Notice of Registration Commission. By Notice dated October 8, 2010, and DATE AND TIME: 10 a.m., Thursday, DEPARTMENT OF LABOR published in the Federal Register on February 17, 2011. October 20, 2010, 75 FR 64745, Halo PLACE: U.S. Parole Commission, 5550 Office of Workers’ Compensation Pharmaceutical Inc., 30 North Jefferson Friendship Boulevard, 4th Floor, Chevy Programs Road, Whippany, New Jersey 07981, Chase, Maryland 20815. Division of Coal Mine Workers’ made application by renewal to the STATUS: Closed. Drug Enforcement Administration Compensation; Proposed Extension of MATTERS CONSIDERED: The following (DEA) to be registered as a bulk Existing Collection; Comment Request matter will be considered during the manufacturer of the following basic closed meeting: Discussion of an ACTION: classes of controlled substances: Notice. original jurisdiction case pursuant to 28 CFR 2.17. SUMMARY: The Department of Labor, as Drug Schedule part of its continuing effort to reduce AGENCY CONTACT: Patricia W. Moore, Dihydromorphine (9145) ...... I Staff Assistant to the Chairman, United paperwork and respondent burden, Hydromorphone (9150) ...... II States Parole Commission, (301) 492– conducts a pre-clearance consultation 5933. program to provide the general public Dihydromorphine is an intermediate and Federal agencies with an in the manufacture of Hydromorphone Dated: February 15, 2011, opportunity to comment on proposed and is not for commercial distribution. Rockne Chickinell, and/or continuing collections of The company plans to manufacture General Counsel, U.S. Parole Commission. information in accordance with the Hydromorphone HCL for sale to other [FR Doc. 2011–3902 Filed 2–22–11; 8:45 am] Paperwork Reduction Act of 1995 manufacturers and for the manufacture BILLING CODE 4410–31–M (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This of other controlled substance dosage program helps to ensure that requested units for distribution to its customers. data can be provided in the desired No comments or objections have been DEPARTMENT OF JUSTICE format, reporting burden (time and received. DEA has considered the financial resources) is minimized, factors in 21 U.S.C. 823(a) and United States Parole Commission collection instruments are clearly determined that the registration of Halo Record of Vote of Meeting Closure understood, and the impact of collection Pharmaceutical Inc. to manufacture the (Pub. L. 94–409) (5 U.S.C. Sec. 552b) requirements on respondents can be listed basic classes of controlled properly assessed. Currently, the Office substances is consistent with the public I, Isaac Fulwood, of the United States of Workers’ Compensation Programs is interest at this time. DEA has Parole Commission, was present at a soliciting comments concerning its investigated Halo Pharmaceutical Inc. to meeting of said Commission, which proposal to extend OMB approval of the ensure that the company’s registration is started at approximately 11:30 a.m., on information collection for the following consistent with the public interest. The Thursday, February 10, 2011, at the U.S. medical reports:

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Roentgenographic Interpretation (CM– (DCMWC) is required to schedule a * Minimize the burden of the 933), Roentgenographic Quality series of four diagnostic tests to help collection of information on those who Rereading (CM–933b), Medical History establish eligibility for black lung are to respond, including through the and Examination for Coal Mine benefits. Each of the diagnostic tests has use of appropriate automated, Workers’ Pneumoconiosis (CM–988), its own form that sets forth the medical electronic, mechanical, or other Report of Arterial Blood Gas Study results. The forms are: technological collection techniques or (CM–1159) and Report of Ventilatory Roentgenographic Interpretation (CM– other forms of information technology, Study (CM–2907). A copy of the 933), Roentgenographic Quality e.g., permitting electronic submissions proposed information collection request Rereading (CM–933b), Medical History of responses. can be obtained by contacting the office and Examination for Coal Mine III. Current Actions: The Department listed below in the addresses section of Workers’ Pneumoconiosis (CM–988), of Labor seeks the approval for the this Notice. Report of Arterial Blood Gas Study extension of this currently-approved DATES: Written comments must be (CM–1159), and Report of Ventilatory information collection in order to carry submitted to the office listed in the Study (CM–2907). This information out its responsibility to administer the addresses section below on or before collection is currently approved for use Black Lung Benefits Act. April 25, 2011. through August 31, 2011. II. Review Focus: The Department of Agency: Office of Workers’ ADDRESSES: Mr. Vincent Alvarez, U.S. Labor is particularly interested in Compensation Programs. Department of Labor, 200 Constitution comments which: Type of Review: Extension. Ave., NW., Room S–3201, Washington, * Evaluate whether the proposed Title: Roentgenographic Interpretation DC 20210, telephone (202) 693–0372, collection of information is necessary (CM–933), Roentgenographic Quality fax (202) 693–1447, E-mail for the proper performance of the Rereading (CM–933b), Medical History [email protected]. Please use functions of the agency, including and Examination for Coal Mine only one method of transmission for whether the information will have Workers’ Pneumoconiosis (CM–988), comments (mail, fax, or E-mail). practical utility; Report of Arterial Blood Gas Study SUPPLEMENTARY INFORMATION: * Evaluate the accuracy of the (CM–1159), and Report of Ventilatory I. Background: The Black Lung agency’s estimate of the burden of the Study (CM–2907). Benefits Act of 1977 as amended, 20 proposed collection of information, OMB Number: 1240–0023. U.S.C. 901 et seq. and 20 CFR 718.102 including the validity of the set forth criteria for the administration methodology and assumptions used; Agency Number: CM–933, CM–933b, and interpretation of x-rays. When a * Enhance the quality, utility and CM–988, CM–1159 and CM–2907. miner applies for benefits, the Division clarity of the information to be Affected Public: Business or other for of Coal Mine Workers’ Compensation collected; and profit, and not-for-profit institutions.

Number of Number of Form Time to complete Frequency of response respondents responses Hours burden

CM–933 ...... 5 min ...... on occasion ...... 4800 4800 400 CM–933b ...... 3 min ...... on occasion ...... 4800 4800 240 CM–988 ...... 30 min ...... on occasion ...... 4800 4800 2400 CM–1159 ...... 15 min ...... on occasion ...... 4800 4800 1200 CM–2907 ...... 20 min ...... on occasion ...... 4800 4800 1600

Totals ...... 24000 24000 5840

Total Respondents: 24,000. DEPARTMENT OF LABOR format, reporting burden (time and Total Annual Responses: 24,000. financial resources) is minimized, Average Time per Response: 3 Office of Workers’ Compensation collection instruments are clearly minutes–30 minutes. Programs understood, and the impact of collection Estimated Total Burden Hours: 5,840. requirements on respondents can be Division of Federal Employees’ Frequency: On occasion. properly assessed. Currently, the Office Compensation; Proposed Extension of Total Burden Cost (capital/startup): of Workers’ Compensation Programs is Existing Collection; Comment Request $0. soliciting comments concerning the Total Burden Cost (operating/ proposed collection: Notice of ACTION: maintenance): $35,520. Notice. Recurrences (CA–2a). A copy of the Comments submitted in response to proposed information collection request SUMMARY: The Department of Labor, as this notice will be summarized and/or can be obtained by contacting the office part of its continuing effort to reduce included in the request for Office of listed below in the addresses section of paperwork and respondent burden, Management and Budget approval of the this Notice. conducts a preclearance consultation information collection request; they will program to provide the general public DATES: Written comments must be also become a matter of public record. and Federal agencies with an submitted to the office listed in the Dated: February 16, 2011. opportunity to comment on proposed addresses section below on or before Vincent Alvarez, and/or continuing collections of April 25, 2011. Agency Clearance Officer, Office of Workers’ information in accordance with the ADDRESSES: Mr. Vincent Alvarez, U.S. Compensation Programs, U.S. Department of Paperwork Reduction Act of 1995 Department of Labor, 200 Constitution Labor. (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This Ave., NW., Room S–3201, Washington, [FR Doc. 2011–3956 Filed 2–22–11; 8:45 am] program helps to ensure that requested DC 20210, telephone (202) 693–0372, BILLING CODE 4510–CK–P data can be provided in the desired fax (202) 693–1447, E-mail

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[email protected]. Please use Agency Number: CA–2a. 0013 in the subject line of your only one method of transmission for Affected Public: Individuals or comments. Comments submitted in comments (mail, fax, or E-mail). households. writing or in electronic form will be SUPPLEMENTARY INFORMATION: Total Respondents: 314. posted on the NRC Web site and on the I. Background: The Office of Workers’ Total Annual Responses: 314. Federal Rulemaking Web site Compensation Programs administers the Average Time per Response: 30 Regulations.gov. Because your Federal Employees’ Compensation Act, minutes. comments will not be edited to remove (5 U.S.C. 8101, et seq.), which provides Estimated Total Burden Hours: 157. any identifying or contact information, for continuation of pay or compensation Frequency: Annually. the NRC cautions you against including for work related injuries or disease that Total Burden Cost (capital/startup): any information in your submission that result from federal employment. $0. you do not want to be publicly Regulation 20 CFR 10.104 designates Total Burden Cost (operating/ disclosed. form CA–2a as the form to be used to maintenance): $148. The NRC requests that any party request information from claimants with Comments submitted in response to soliciting or aggregating comments previously-accepted injuries, who claim this notice will be summarized and/or received from other persons for a recurrence of disability, and from their included in the request for Office of submission to the NRC inform those supervisors. The form requests Management and Budget approval of the persons that the NRC will not edit their information relating to the specific information collection request; they will comments to remove any identifying or circumstances leading up to the also become a matter of public record. contact information, and therefore, they recurrence as well as information about Dated: February 16, 2011. should not include any information in their comments that they do not want their employment and earnings. The Vincent Alvarez, information provided is used by OWCP publicly disclosed. Agency Clearance Officer, Office of Workers’ Federal rulemaking Web site: Go to claims examiners to determine whether Compensation Programs, U.S. Department of a claimant has suffered a recurrence of Labor. http://www.regulations.gov and search for documents filed under Docket ID disability related to an accepted injury [FR Doc. 2011–3957 Filed 2–22–11; 8:45 am] NRC–2011–0013. Comments may be and, if so, the appropriate benefits BILLING CODE 4510–CH–P payable. This information collection is submitted electronically through this currently approved for use through May Web site. Address questions about NRC 31, 2011. dockets to Carol Gallagher, telephone: NUCLEAR REGULATORY II. Review Focus: The Department of 301–492–3668, e-mail: COMMISSION Labor is particularly interested in [email protected]. comments which: [NRC–2011–0013] Mail comments to: Cindy Bladey, • Evaluate whether the proposed Chief, Rules, Announcements, and collection of information is necessary Proposed Generic Communications; Directives Branch (RADB), Division of for the proper performance of the Draft NRC Regulatory Issue Summary Administrative Services, Office of functions of the agency, including 2011–XX, Adequacy of Station Electric Administration, Mail Stop: TWB–05– whether the information will have Distribution System Voltages; B01M, U.S. Nuclear Regulatory practical utility; Reopening of Public Comment Period Commission, Washington, DC 20555– • Evaluate the accuracy of the 0001, or by fax to RADB at 301–492– AGENCY: Nuclear Regulatory agency’s estimate of the burden of the 3446. Commission. proposed collection of information, Availability: Publicly available including the validity of the ACTION: Reopening of public comment documents related to this notice can be methodology and assumptions used; period. accessed using any of the methods • Enhance the quality, utility and described in this section. SUMMARY: This notice revises a notice NRC’s Public Document Room (PDR): clarity of the information to be published on January 18, 2011, in the collected; and The public may examine and have • Federal Register (76 FR 2924), which copied, for a fee, publicly available Minimize the burden of the announced, in part, that the public collection of information on those who documents related to the NFS facility comment period for the U.S. Nuclear and license renewal at the NRC’s PDR, are to respond, including through the Regulatory Commission’s (NRC’s) Draft use of appropriate automated, located at One White Flint North, 11555 Regulatory Issue Summary 2011–XX, Rockville Pike, Room O1–F21, electronic, mechanical, or other Adequacy of Station Electric technological collection techniques or Rockville, Maryland 20852–2738. Distribution System Voltages, closes on Members of the public can contact the other forms of information technology, February 17, 2011. The purpose of this e.g., permitting electronic submissions NRC’s PDR reference staff by calling 1– notice is to reopen the public comment 800–397–4209, by faxing a request to of responses. period on the Draft RIS for an additional III. Current Actions: The Department 301–415–3548, or by e-mail to 30 days to allow more time for industry [email protected]. of Labor seeks the approval for the to assemble comments. extension of this currently approved NRC’s Agencywide Documents Access information collection in order to DATES: Comment period expires on and Management System (ADAMS): ensure the accurate payment of benefits March 19, 2011. Comments submitted Members of the public can access the to current and former Federal after this date will be considered if it is NRC’s ADAMS at http://www.nrc.gov/ employees with recurring work-related practical to do so, but assurance of reading-rm/adams.html. From this Web injuries. consideration cannot be given except for site, the Draft RIS (ADAMS Accession Type of Review: Extension. comments received on or before this Number: ML102950322) can be obtained Agency: Office of Workers’ date. by entering the accession numbers Compensation Programs. ADDRESSES: You may submit comments provided. Title: Notice of Recurrences. by any one of the following methods. FOR FURTHER INFORMATION CONTACT: OMB Number: 1240–0009. Please include Docket ID NRC–2011– Kenn A Miller, Office of Nuclear

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Reactor Regulation, Division of Commission, and recording secretaries WisdomTree Asia Local Debt Fund (f/k/ Engineer, U.S. Nuclear Regulatory will attend the Closed Meeting. Certain a WisdomTree Asia Bond Fund) under Commission, Washington, DC 20555– staff members who have an interest in NYSE Arca Equities Rule 8.600. The 0001, telephone: 301–415–3152, e-mail: the matters also may be present. proposed rule change was published for [email protected]. The General Counsel of the comment in the Federal Register on SUPPLEMENTARY INFORMATION: Pursuant Commission, or his designee, has January 3, 2011.3 On February 15, 2011, to 10 CFR 51.33(a), the NRC staff is certified that, in his opinion, one or the Exchange filed Amendment No. 1 to making the Draft RIS available for more of the exemptions set forth in 5 the proposed rule change.4 The public review and comment. The public U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) Commission received no comments on comment period is reopened with and 17 CFR 200.402(a)(3), (5), (7), 9(ii) the proposal. This order grants approval publication of this notice and continues and (10), permit consideration of the of the proposed rule change, as until March 19, 2011. scheduled matters at the Closed amended. Meeting. Dated at Rockville, Maryland, this 15th day II. Description of the Proposal of February, 2011. Commissioner Aguilar, as duty officer, voted to consider the items For the Nuclear Regulatory Commission. The Exchange proposes to list and listed for the Closed Meeting in a closed trade shares (‘‘Shares’’) of the Roy Mathew, session. WisdomTree Asia Local Debt Fund Acting Branch Chief, Electrical Engineering The subject matter of the Closed (‘‘Fund’’) of the WisdomTree Trust Branch, Division of Engineering, Office of Meeting scheduled for Thursday, Nuclear Reactor Regulation. (‘‘Trust’’) under NYSE Arca Equities February 24, 2011 will be: Rule 8.600, which governs the listing [FR Doc. 2011–3987 Filed 2–22–11; 8:45 am] Institution and settlement of injunctive and trading of Managed Fund Shares on BILLING CODE 7590–01–P actions; the Exchange. The Fund will be an Institution and settlement of administrative actively managed exchange-traded fund. proceedings; and The Shares will be offered by the Trust, OVERSEAS PRIVATE INVESTMENT Other matters relating to enforcement which was established as a Delaware CORPORATION proceedings. statutory trust on December 15, 2005 At times, changes in Commission and is registered with the Commission Sunshine Act Public Hearing 5 Cancellation Notice; February 24, 2011 priorities require alterations in the as an investment company. scheduling of meeting items. WisdomTree Asset Management, Inc. OPIC’s Sunshine Act notice of its For further information and to (‘‘WisdomTree Asset Management’’) is Public Hearing in Conjunction with ascertain what, if any, matters have been the investment adviser (‘‘Adviser’’) to each Board meeting was published in added, deleted or postponed, please the Fund,6 and Mellon Capital the Federal Register (Volume 76, contact: Management serves as sub-adviser for Number 22, Pages 5842 and 5843) on The Office of the Secretary at (202) the Fund (‘‘Sub-Adviser’’).7 The Bank of February 2, 2011. No requests were 551–5400. New York Mellon is the administrator, received to provide testimony or submit Dated: February 17, 2011. custodian, and transfer agent for the written statements for the record; Trust, and ALPS Distributors, Inc. Elizabeth M. Murphy, therefore, OPIC’s public hearing serves as the distributor for the Trust. Secretary. scheduled for 2 PM, February 24, 2011 The Fund seeks to provide investors [FR Doc. 2011–4078 Filed 2–18–11; 11:15 am] in conjunction with OPIC’s March 10, with a high level of total return 2011 Board of Directors meeting has BILLING CODE 8011–01–P consisting of both income and capital been cancelled. appreciation. The Fund is designed to Contact Person for Information: provide exposure to a broad range of Information on the hearing cancellation SECURITIES AND EXCHANGE COMMISSION Asian government and corporate bonds may be obtained from Connie M. Downs through investment in both local at (202) 336–8438, or via e-mail at [Release No. 34–63919; File No. SR– currency (e.g., Hong Kong dollar; South [email protected]. NYSEArca–2010–116] Korean won) and U.S. dollar- Dated: February 17, 2011. Self-Regulatory Organizations; NYSE 3 Connie M. Downs, Arca, Inc.; Order Granting Approval of See Securities Exchange Act Release No. 63609 OPIC Corporate Secretary. (December 27, 2010), 76 FR 194 (‘‘Notice’’). Proposed Rule Change, as Modified by 4 In Amendment No. 1, the Exchange modified [FR Doc. 2011–4103 Filed 2–18–11; 11:15 am] Amendment No. 1 Thereto, Relating to the name of the Fund from ‘‘WisdomTree Asia Bond BILLING CODE 3210–01–P the Listing and Trading of the Fund’’ to ‘‘WisdomTree Asia Local Debt Fund,’’ WisdomTree Asia Local Debt Fund updated references to the amended Registration Statement (as defined herein), and clarified that the February 16, 2011. Fund intends to invest in issuers in Australia and SECURITIES AND EXCHANGE New Zealand. Because such modifications are COMMISSION I. Introduction either technical in nature or clarifications, the amendment does not require notice and comment. Sunshine Act Meeting On December 13, 2010, NYSE Arca, 5 The Fund has filed a registration statement on Inc. (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed Form N–1A (‘‘Registration Statement’’) with the Notice is hereby given, pursuant to with the Securities and Exchange Commission. See Post-Effective Amendment No. 42 to Registration Statement on Form N–1A for the the provisions of the Government in the Commission (‘‘Commission’’), pursuant Trust, dated January 24, 2011 (File Nos. 333– Sunshine Act, Public Law 94–409, that to Section 19(b)(1) of the Securities 132380 and 811–21864). the Securities and Exchange Exchange Act of 1934 (‘‘Act’’) 1 and Rule 6 WisdomTree Investments, Inc. is the parent Commission will hold a Closed Meeting 19b–4 thereunder,2 a proposed rule company of WisdomTree Asset Management. on Thursday, February 24, 2011 at 2 change to list and trade shares of the 7 The Sub-Adviser is responsible for day-to-day management of the Fund and, as such, typically p.m. makes all decisions with respect to portfolio Commissioners, Counsel to the 1 15 U.S.C. 78s(b)(1). holdings. The Adviser has ongoing oversight Commissioners, the Secretary to the 2 17 CFR 240.19b–4. responsibility.

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denominated Fixed Income Securities.8 expects that it will have 75% or more The Fund may use derivative The Fund seeks to achieve its of its assets invested in investment instruments as part of its investment investment objective through direct and grade securities, and no more than 25% strategies. Examples of derivative indirect investments in Fixed Income of its assets invested in non-investment instruments include listed futures Securities issued by governments and grade securities. Because the Fund is contracts,9 forward currency contracts, corporations in Asian countries and designed to provide exposure to a broad non-deliverable forward currency intends to focus on the developing/ range of Asian government and contracts, currency and interest rate emerging market economies in Asia, corporate bonds, and because the debt swaps, currency options, options on primarily China, Hong Kong, India, ratings of the Asian governments and futures contracts, swap agreements and Indonesia, South Korea, Malaysia, the those corporate issuers will change from credit-linked notes.10 The Fund’s use of Philippines, Singapore, Taiwan, and time to time, the exact percentage of the derivative instruments (other than Thailand. While the Fund is permitted Fund’s investments in investment grade credit-linked notes) will be to invest in developed market and non-investment grade securities collateralized or otherwise backed by economies, this is not a focus of the will change from time to time in investments in short term, high-quality Fund. However, the Fund intends to response to economic events and U.S. money market securities. The Fund invest in issuers in Australia and New changes to the credit ratings of the expects that no more than 30% of the Zealand. Asian government and corporate value of the Fund’s net assets will be The Fund intends to invest at least issuers. Within the non-investment invested in derivative instruments. Such 70% of its net assets in Fixed Income grade category, some issuers and investments will be consistent with the Securities. The Fund expects to invest instruments are considered to be of Fund’s investment objective and will up to 20% of its net assets in Asian lower credit quality and at higher risk not be used to enhance leverage. corporate bonds. The Fund will invest of default. In order to limit its exposure The Fund may invest in the securities only in corporate bonds that the Adviser to these more speculative credits, the of other investment companies or Sub-Adviser deems to be sufficiently Fund will not invest more than 15% of (including money market funds and liquid. Generally, a corporate bond must its assets in securities rated B or below exchange-traded funds). The Fund may have $200 million or more par amount by Moody’s, or equivalently rated by invest up to an aggregate amount of 10% outstanding and significant par value S&P or Fitch. The Fund does not intend of its net assets in illiquid securities. traded to be considered as an eligible to invest in unrated securities. However, Illiquid securities include securities investment. Economic and other it may do so to a limited extent, such subject to contractual or other conditions in Asia may, from time to as where a rated security becomes restrictions on resale and other time, lead to a decrease in the average unrated, if such security is, determined instruments that lack readily available par amount outstanding of bond by the Adviser and Sub-Adviser to be of markets. issuances. Therefore, although the Fund comparable quality. In determining Additional details regarding the Trust does not intend to do so, the Fund may whether a security is of ‘‘comparable and the Fund, the investment objective invest up to 5% of its net assets in quality,’’ the Adviser and Sub-Adviser and strategies, creations and corporate bonds with less than $200 will consider, for example, whether the redemptions of the Shares, investment ‘‘ ’’ million par amount outstanding if (i) the issuer of the security has issued other risks, net asset value ( NAV ) Adviser or Sub-Adviser deems such rated securities. The Fund will not calculation, the dissemination of key security to be sufficiently liquid based invest in non-U.S. equity securities. values and availability of information on its analysis of the market for such about the underlying assets, trading security (based on, for example, broker- The Fund intends to invest in Money halts, applicable trading rules, dealer quotations or its analysis of the Market Securities in order to help surveillance, and the Information trading history of the security or the manage cash flows in and out of the Bulletin, among other things, can be trading history of other securities issued Fund, such as in connection with found in the Notice and/or the by the issuer), (ii) such investment is payment of dividends or expenses, and Registration Statement, as applicable.11 consistent with the Fund’s goal of to satisfy margin requirements, to providing exposure to a broad range of provide collateral or to otherwise back III. Discussion and Commission’s Asian government and corporate bonds, investments in derivative instruments. Findings and (iii) such investment is deemed by For these purposes, Money Market After careful consideration, the the Adviser or Sub-Adviser to be in the Securities include: short-term, high- Commission finds that the proposed best interest of the Fund. The Fund will quality obligations issued or guaranteed rule change to list and trade the Shares hold Fixed Income Securities of at least by the U.S. Treasury or the agencies or of the Fund is consistent with the 13 non-affiliated issuers. instrumentalities of the U.S. requirements of the Act and the rules The Fund is designed to provide a government; short-term, high-quality and regulations thereunder applicable to broad-based, representative exposure to securities issued or guaranteed by non- a national securities exchange.12 In Asian government and corporate bonds U.S. governments, agencies and particular, the Commission finds that and therefore will invest in both instrumentalities; repurchase the proposed rule change is consistent investment grade and non-investment agreements backed by U.S. government grade securities in a manner designed to securities; money market mutual funds; 9 The listed futures contracts in which the Fund provide this exposure. The Fund and deposits and other obligations of will invest may be listed on exchanges either in the U.S. and non-U.S. banks and financial U.S. or in either Hong Kong or Singapore. 10 The Fund’s investments in credit-linked notes 8 Fixed Income Securities include bonds, notes or institutions. All Money Market will be limited to notes providing exposure to Asian other debt obligations, such as government or Securities acquired by the Fund will be corporate bonds, denominated in local currencies or Fixed Income Securities. The Fund’s overall U.S. dollars, as well as issues denominated in Asian rated investment grade, except that the investment in credit-linked notes will not exceed local currencies that are issued by ‘‘supranational Fund may invest in unrated Money 25% of the Fund’s assets. issuers,’’ such as the European Investment Bank, Market Securities that are deemed by 11 See supra notes 3 and 5. 12 International Bank for Reconstruction and the Adviser or Sub-Adviser to be of In approving this proposed rule change, the Development, and the International Finance Commission notes that it has considered the Corporation, as well as development agencies comparable quality to money market proposed rule’s impact on efficiency, competition, supported by other national governments. securities rated investment grade. and capital formation. See 15 U.S.C. 78c(f).

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with the requirements of Section 6(b)(5) the Fund’s portfolio, defined in NYSE Exchange also represents that the Sub- of the Act,13 which requires, among Arca Equities Rule 8.600 as the Adviser, which is affiliated with other things, that the Exchange’s rules ‘‘Portfolio Indicative Value,’’ will also be multiple broker-dealers, has be designed to prevent fraudulent and disseminated. The Portfolio Indicative implemented a ‘‘fire wall’’ with respect manipulative acts and practices, to Value will be based upon the current to such broker-dealers regarding access promote just and equitable principles of value for the components of the to information concerning the trade, to foster cooperation and Disclosed Portfolio and will be updated composition and/or changes to the coordination with persons engaged in and disseminated by one or more major Fund’s portfolio. In addition, Sub- facilitating transactions in securities, market data vendors at least every 15 Adviser personnel who make decisions and to remove impediments to and seconds during the Core Trading regarding the Fund’s portfolio are perfect the mechanism of a free and Session on the Exchange. In addition, subject to procedures designed to open market and a national market during hours when the markets for prevent the use and dissemination of system. The Commission notes that the securities in the Fund’s portfolio are material non-public information Shares and Fund must comply with the closed, the Portfolio Indicative Value regarding the Fund’s portfolio.19 requirements of NYSE Arca Equities will be updated at least every 15 Finally, the Commission notes that the Rule 8.600, among other Exchange rules, seconds during the Core Trading Reporting Authority that provides the to be listed and traded on the Exchange. Session to reflect currency exchange Disclosed Portfolio must implement and The Commission finds that the fluctuations. Intra-day and end-of-day maintain, or be subject to, procedures proposal to list and trade the Shares on prices for the Fixed Income Securities, designed to prevent the use and the Exchange is also consistent with Money Market Securities, and derivative dissemination of material non-public Section 11A(a)(1)(C)(iii) of the Act,14 instruments held by the Fund are information regarding the actual which sets forth Congress’ finding that readily available through major market components of the portfolio.20 it is in the public interest and data providers and broker-dealers. The The Exchange has represented that appropriate for the protection of Web site for the Fund (http:// the Shares are deemed equity securities investors and the maintenance of fair www.wisdomtree.com) will include a subject to the Exchange’s rules and orderly markets to assure the form of the prospectus and additional governing the trading of equity availability to brokers, dealers, and data relating to NAV and other securities. In support of this proposal, investors of information with respect to applicable quantitative information. the Exchange has made representations, quotations for, and transactions in, The Commission further believes that including the following: securities. Quotation and last-sale the proposal to list and trade the Shares (1) The Shares will be subject to information regarding the Shares will be is reasonably designed to promote fair NYSE Arca Equities Rule 8.600, which available via the Consolidated Tape disclosure of information that may be sets forth the initial and continued listing criteria applicable to Managed Association’s high-speed line. On each necessary to price the Shares Fund Shares. business day before commencement of appropriately and to prevent trading (2) The Exchange has appropriate trading in the Shares in the Core when a reasonable degree of 15 rules to facilitate transactions in the Trading Session on the Exchange, the transparency cannot be assured. The Trust will disclose on its Web site the Shares during all trading sessions. Commission notes that the Exchange (3) The Exchange’s surveillance identities and quantities of the portfolio will obtain a representation from the of securities and other assets (‘‘Disclosed procedures are adequate to properly issuer of the Shares that the NAV and monitor Exchange trading of the Shares Portfolio’’) held by the Fund that will the Disclosed Portfolio will be made form the basis for the Fund’s calculation in all trading sessions and to deter and available to all market participants at detect violations of Exchange rules and of NAV at the end of the business day.16 the same time.17 If the Exchange The Disclosed Portfolio will include, as applicable Federal securities laws. becomes aware that the NAV or (4) Prior to the commencement of applicable, the names, quantity, Disclosed Portfolio with respect to the trading, the Exchange will inform its percentage weighting, and market value Shares is not disseminated to all market ETP Holders in an Information Bulletin of Fixed Income Securities and other participants at the same time, it will halt of the special characteristics and risks assets held by the Fund and the trading in the Shares until such time as associated with trading the Shares. characteristics of such assets. The NAV the NAV or Disclosed Portfolio is Specifically, the Information Bulletin of the Fund’s Shares generally is available to all market participants. will discuss the following: (a) The calculated once daily Monday through Further, the Exchange may halt trading procedures for purchases and Friday as of the close of regular trading during the day in which an interruption redemptions of Shares in Creation Unit on the New York Stock Exchange, to the dissemination of the Portfolio aggregations (and that Shares are not generally 4:00 p.m. Eastern time. In Indicative Value occurs. If the individually redeemable); (b) NYSE addition, an estimated value that interruption to the dissemination of the Arca Equities Rule 9.2(a), which reflects an estimated intraday value of Portfolio Indicative Value persists past imposes a duty of due diligence on its the trading day in which it occurred, the ETP Holders to learn the essential facts 13 15 U.S.C. 78f(b)(5). Exchange will halt trading no later than 14 15 U.S.C. 78k–1(a)(1)(C)(iii). relating to every customer prior to 15 the beginning of the trading day The Core Trading Session is 9:30 a.m. to 4:00 18 p.m. Eastern time. following the interruption. The detrimental to the maintenance of a fair and orderly 16 Under accounting procedures followed by the market are present. Fund, trades made on the prior business day (‘‘T’’) 17 See NYSE Arca Equities Rule 8.600(d)(1)(B). 19 See Commentary .06 to NYSE Arca Equities will be booked and reflected in NAV on the current 18 See NYSE Arca Equities Rule 8.600(d)(2)(D). Rule 8.600. In the event (a) the Adviser or the Sub- business day (‘‘T+1’’). Notwithstanding the Trading in the Shares may also be halted because Adviser becomes newly affiliated with a broker- foregoing, portfolio trades that are executed prior to of market conditions or for reasons that, in the view dealer, or (b) any new adviser or sub-adviser the opening of the Exchange on any business day of the Exchange, make trading in the Shares becomes affiliated with a broker-dealer, they will be may be booked and reflected in NAV on such inadvisable. These may include: (1) The extent to required to implement a fire wall with respect to business day. Accordingly, the Fund will be able to which trading is not occurring in the securities and/ such broker-dealer regarding access to information disclose at the beginning of the business day the or the financial instruments comprising the concerning the composition and/or changes to the portfolio that will form the basis for the NAV Disclosed Portfolio of the Fund; or (2) whether portfolio. calculation at the end of the business day. other unusual conditions or circumstances 20 See NYSE Arca Equities Rule 8.600(d)(2)(B)(ii).

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trading the Shares; (c) the risks involved 10, 2011, the C2 Options Exchange, directors of an issuer (except for a vote in trading the Shares during the Incorporated (‘‘Exchange’’ or ‘‘C2’’) filed with respect to the uncontested election Opening and Late Trading Sessions with the Securities and Exchange of a member of the board of directors of when an updated Portfolio Indicative Commission (‘‘Commission’’) the any investment company registered Value will not be calculated or publicly proposed rule change as described in under the Investment Company Act of disseminated; (d) how information Items I and II below, which Items have 1940 (the ‘‘Investment Company Act’’), regarding the Portfolio Indicative Value been prepared by the Exchange. The (ii) executive compensation, or (iii) any is disseminated; (e) the requirement that Commission is publishing this notice to other significant matter, as determined ETP Holders deliver a prospectus to solicit comments on the proposed rule by the Commission, by rule.5 investors purchasing newly issued change from interested persons, and is Shares prior to or concurrently with the approving the proposed rule change on Accordingly, in order to carryout the confirmation of a transaction; and (f) an accelerated basis. requirements of Section 957 of the Dodd-Frank Act, the Exchange is trading information. I. Self-Regulatory Organization’s (5) A minimum of 100,000 Shares will proposing to adopt Supplemental Rule Statement of the Terms of Substance of (a) to C2 Chapter 4. Paragraph (1) of the be outstanding at the commencement of the Proposed Rule Change trading on the Exchange. proposed rule provides that a C2 Permit (6) For initial and/or continued The Exchange proposes to adopt Holder is prohibited from giving a proxy listing, the Shares must be in Supplemental Rule (a), Proxy Voting, to to vote stock that is registered in its compliance with Rule 10A–3 under the C2 Chapter 4 in accordance with name, unless: (i) Such Permit Holder is Act.21 provisions of Section 957 of the Dodd- the beneficial owner of such stock; (ii) This approval order is based on the Frank Wall Street Reform and Consumer pursuant to the written instructions of Protection Act (the ‘‘Dodd-Frank Act’’). Exchange’s representations. the beneficial owner; or (iii) pursuant to The text of the rule proposal is available For the foregoing reasons, the the rules of any national securities Commission finds that the proposed on the Exchange’s Web site (http:// www.cboe.org/legal), at the Exchange’s exchange or association of which it is a rule change is consistent with the Act member provided that the records of the and the rules and regulations Office of the Secretary and at the Commission. Permit Holder clearly indicate the thereunder applicable to a national procedure it is following. The Exchange securities exchange. II. Self-Regulatory Organization’s is proposing to adopt these provisions IV. Conclusion Statement of the Purpose of, and because other national securities Statutory Basis for, the Proposed Rule exchanges and associations do allow It is therefore ordered, pursuant to Change Section 19(b)(2) of the Act,22 that the proxy voting under certain limited proposed rule change (SR–NYSEArca– In its filing with the Commission, the circumstances while the current 2010–116), as modified by Amendment self-regulatory organization included Exchange Rules are silent on such No. 1 thereto, be, and it hereby is, statements concerning the purpose of matters. Therefore, a C2 Permit Holder approved. and basis for the proposed rule change that is also a member of another and discussed any comments it received For the Commission, by the Division of national securities exchange or on the proposed rule change. The text association may vote shares held for a Trading and Markets, pursuant to delegated of those statements may be examined at authority.23 customer when allowed under its the places specified in Item IV below. membership at another national Cathy H. Ahn, The Exchange has prepared summaries, Deputy Secretary. set forth in sections A, B, and C below, securities exchange or association, [FR Doc. 2011–3984 Filed 2–22–11; 8:45 am] of the most significant parts of such provided that the records of the C2 BILLING CODE 8011–01–P statements. Permit Holder clearly indicate the procedure it is following. A. Self-Regulatory Organization’s Statement of the Purpose of, and the Notwithstanding the above, paragraph SECURITIES AND EXCHANGE (2) of the proposed rule provides that a COMMISSION Statutory Basis for, the Proposed Rule Change C2 Permit Holder that is not the [Release No. 34–63918; File No. SR–C2– beneficial owner of a security registered 2011–005] 1. Purpose under Section 12 of the Act is Section 957 of the Dodd-Frank Act prohibited from granting a proxy to vote Self-Regulatory Organizations; C2 adopted new Section 6(b)(10) of the the security in connection with a Options Exchange, Incorporated; Act,3 which requires the rules of each shareholder vote on the election of a Notice of Filing and Order Granting national securities exchange to prohibit member of the board of directors of an Accelerated Approval of Proposed any member that is not the beneficial Rule Change to Adopt Supplemental issuer (except for a vote with respect to owner of a security registered under uncontested election of a member of the Rule (a) to Chapter 4 Relating to Proxy Section 12 of the Act 4 from granting a Voting board of directors of any investment proxy to vote the security in connection company registered under the February 16, 2011. with certain shareholder votes, unless Investment Company Act), executive Pursuant to Section 19(b)(1) of the the beneficial owner of the security has compensation, or any other significant instructed the member to vote the proxy Securities Exchange Act of 1934 (the matter, as determined by the 1 2 in accordance with the voting ‘‘Act’’), and Rule 19b–4 thereunder, Commission, by rule, unless the notice is hereby given that on February instructions of the beneficial owner. The shareholder votes covered by Section beneficial owner of the security has instructed the Permit Holder to vote the 21 957 include any vote with respect to (i) See 17 CFR 240.10A–3. proxy in accordance with the voting 22 15 U.S.C. 78f(b)(2). the election of a member of the board of 23 17 CFR 200.30–3(a)(12). instructions of the beneficial owner. 1 15 U.S.C. 78s(b)(1). 3 15 U.S.C. 78f(b)(10). 2 17 CFR 240.19b–4. 4 15 U.S.C. 78l. 5 15 U.S.C. 78f(b)(10)(B).

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2. Statutory Basis Electronic Comments After careful consideration, the The Exchange believes the proposed • Use the Commission’s Internet Commission finds that the proposed rule change is consistent with the Act 6 comment form (http://www.sec.gov/ rule change is consistent with the and the rules and regulations rules/sro.shtml); or requirements of the Act and the rules thereunder and, in particular, the • Send an e-mail to rule- and regulations thereunder applicable to 10 requirements of Section 6(b) of the Act.7 [email protected]. Please include File a national securities exchange. Specifically, the Exchange believes the Number SR–C2–2011–005 on the The Commission believes that proposed rule change is consistent with subject line. proposed Supplemental Rule (a) to the Section 6(b)(10) 8 requirements that Chapter 4 is consistent with Section Paper Comments 11 all national securities exchanges adopt 6(b)(5) of the Act, which provides, rules prohibiting members from voting, Send paper comments in triplicate to among other things, that the rules of the without receiving instructions from the Elizabeth M. Murphy, Secretary, Exchange must be designed to promote beneficial owner of shares, on the Securities and Exchange Commission, just and equitable principles of trade, election of a member of a board of 100 F Street, NE., Washington, DC remove impediments to and perfect the directors of an issuer (except for a vote 20549–1090. mechanism of a free and open market with respect to the uncontested election All submissions should refer to File and a national market system, and, in of a member of the board of directors of Number SR–C2–2011–005. This file general, to protect investors and the any investment company registered number should be included on the public interest, and are not designed to under the Investment Company Act of subject line if e-mail is used. To help the permit unfair discrimination between 1940), executive compensation, or any Commission process and review your customers, issuers, brokers, or dealers. Under proposed Supplemental Rule other significant matter, as determined comments more efficiently, please use (a)(1), a Permit Holder shall be by the Commission, by rule. The only one method. The Commission will prohibited from voting uninstructed Exchange also believes that the post all comments on the Commission’s shares unless (1) that Permit Holder is proposed rule changes is consistent Internet Web site (http://www.sec.gov/ the beneficial owner of the stock; (2) with the Section 6(b)(5) requirements rules/sro.shtml). Copies of the pursuant to the written instructions of that an exchange have rules that are submission, all subsequent the beneficial owner; or (3) pursuant to designed to prevent fraudulent and amendments, all written statements the rules of any national securities manipulative acts and practices, to with respect to the proposed rule exchange or association of which it is promote just and equitable principles of change that are filed with the also a member, provided that the Permit trade, to remove impediments to, and Commission, and all written Holder’s records clearly indicate the perfect the mechanism of a free and communications relating to the procedure it is following. This provision open market and, in general, to protect proposed rule change between the is based upon ISE Rule 421, which was investors and the public interest. The Commission and any person, other than previously approved by the Exchange is adopting this proposed rule those that may be withheld from the Commission.12 The Commission notes change to comply with the requirements public in accordance with the that the proposed change will provide of Section 957 of the Dodd-Frank Act, provisions of 5 U.S.C. 552, will be clarity to C2 Permit Holders going and therefore believes the proposed rule available for Web site viewing and printing in the Commission’s Public forward on whether broker discretionary change to be consistent with the Act, voting is permitted by C2 Permit particularly with respect to the Reference Room, 100 F Street, NE., Washington, DC 20549, on official Holders under limited circumstances protection of investors and the public when the Permit Holder is also a interest. business days between the hours of 10 a.m. and 3 p.m. Copies of such filing member of another national securities B. Self-Regulatory Organization’s also will be available for inspection and exchange that permits broker Statement on Burden on Competition copying at the principal office of the discretionary voting. In approving this The Exchange does not believe that Exchange. All comments received will portion of the C2 proposal, the the proposed rule change will impose be posted without change; the Commission notes that Supplemental any burden on competition not Commission does not edit personal Rule (a)(1) is consistent with the approach taken under the rules of other necessary or appropriate in furtherance identifying information from national securities exchanges or of the purposes of the Act. submissions. You should submit only information that you wish to make national securities association, and for C. Self-Regulatory Organization’s available publicly. All submissions C2 Permit Holders who are not also Statement on Comments on the should refer to File Number SR–C2– members of another national securities Proposed Rule Change Received From 2011–005 and should be submitted on exchange prohibits broker discretionary Members, Participants, or Others or before March 16, 2011. voting on any matter, consistent with The Exchange neither solicited nor IV. Commission’s Findings and Order 10 received comments on the proposal. In approving this rule change, the Commission Granting Accelerated Approval of the notes that it has considered the proposed rule’s III. Solicitation of Comments Proposed Rule Change impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). Interested persons are invited to In its filing, C2 requested that the 11 15 U.S.C. 78f(b)(5). submit written data, views, and Commission approve the proposal on an 12 See supra note 9. See also NYSE Arca Rule 9.4 arguments concerning the foregoing, accelerated basis so that the Exchange and FINRA Rule 2251, which are similar and previously approved by the Commission. See including whether the proposed rule could immediately comply with the Securities Exchange Act Release No. 48735 (October change is consistent with the Act. requirements imposed by the Dodd- 31, 2003), 68 FR 63173 (November 7, 2003) (SR– Comments may be submitted by any of Frank Act, and because the proposed PCX–2003–50); 61052 (November 23, 2009), 74 FR the following methods: rule text is based upon International 62857 (December 1, 2009) (SR–FINRA–2009–066) 9 (finding that the proposed rule change was Securities Exchange (‘‘ISE’’) Rule 421. consistent with the Act because the Rule ‘‘will 6 15 U.S.C. 78a et seq. continue to provide FINRA members with guidance 7 15 U.S.C. 78f(b). 9 See Securities Exchange Act Release 63139 on the forwarding of proxy and other issuer-related 8 15 U.S.C. 78f(b)(10). (October 20, 2010), 75 FR 65680 (October 26. 2010). materials.’’).

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investor protection and the public general, to protect investors and the issuer (except for a vote with respect to interest. public interest, and are not designed to the uncontested election of a member of The Commission believes that permit unfair discrimination between the board of directors of any investment proposed Supplemental Rule (a)(2) is customers, issuers, brokers, or dealers. company registered under the consistent with Section 6(b)(10) 13 of the The Commission believes that the rule Investment Company Act of 1940), Act, which requires that national assures that shareholder votes on the executive compensation, or any other securities exchanges adopt rules election of the board of directors of an significant matter, as determined by the prohibiting members that are not issuer (except for a vote with respect to Commission by rule. The Commission beneficial holders of a security from the uncontested election of a member of believes that good cause exists to grant voting uninstructed proxies with respect the board of directors of any investment accelerated approval to proposed to the election of a member of the board company registered under the Supplemental Rule (a)(2), because it of directors of an issuer (except for Investment Company Act of 1940) and will conform the C2 rule to the uncontested elections of directors for on executive compensation matters are requirements of Section 6(b)(10) of the companies registered under the made by those with an economic Act. Investment Company Act), executive interest in the company, rather than by compensation, or any other significant a broker that has no such economic V. Conclusion matter, as determined by the interest, which should enhance Commission by rule. corporate governance and accountability It is therefore ordered, pursuant to The Commission believes that to shareholders.17 Section 19(b)(2) of the Act,20 that the proposed Supplemental Rule (a)(2) is Based on the above, the Commission proposed rule change (SR–C2–2011– consistent with Section 6(b)(10) of the finds that the C2 proposal will further 005) be, and it hereby is, approved on Act because it adopts revisions that the purposes of Sections 6(b)(5) and an accelerated basis. comply with that section. As noted in 6(b)(10) of the Act because it should For the Commission, by the Division of the accompanying Senate Report, enhance corporate accountability to Trading and Markets, pursuant to delegated Section 957, which enacted Section shareholders while also serving to fulfill authority.21 6(b)(10), reflects the principle that ‘‘final the Congressional intent in adopting Cathy H. Ahn, vote tallies should reflect the wishes of Section 6(b)(10) of the Act. the beneficial owners of the stock and The Commission also finds good Deputy Secretary. not be affected by the wishes of the cause, pursuant to Section 19(b)(2) of [FR Doc. 2011–3983 Filed 2–22–11; 8:45 am] broker that holds the shares.’’ 14 The the Act,18 for approving the proposed BILLING CODE 8011–01–P proposed rule change will make C2 rule change prior to the 30th day after compliant with the new requirements of the date of publication of notice in the Section 6(b)(10) by specifically Federal Register. The Commission SECURITIES AND EXCHANGE prohibiting, in C2’s rule language, believes that good cause exists to grant COMMISSION broker-dealers, who are not beneficial accelerated approval to proposed owners of a security, from voting Supplemental Rule (a)(1), because this [Release No. 34–63917; File No. SR–CBOE– uninstructed shares in connection with proposed rule will conform the C2 rule 2011–017] a shareholder vote on the election of a to ISE Rule 421, NYSE Arca Rule 9.4 member of the board of directors of an and FINRA Rule 2251, which were Self-Regulatory Organizations; issuer (except for a vote with respect to published for public comment in the Chicago Board Options Exchange, the uncontested election of a member of Federal Register and approved by the Incorporated; Notice of Filing and the board of directors of any investment Commission, and for which no Order Granting Accelerated Approval company registered under the comments were received.19 Because of a Proposed Rule Change To Amend Investment Company Act of 1940), proposed Supplemental Rule (a)(1) is an Exchange Rule Relating to Giving executive compensation, or any other substantially similar to the ISE, NYSE Proxies significant matter, as determined by the Arca and FINRA rules, it raises no new Commission by rule, unless the member regulatory issues. February 16, 2011. receives voting instructions from the The Commission also believes that Pursuant to Section 19(b)(1) of the beneficial owner of the shares.15 good cause exists to grant accelerated Securities Exchange Act of 1934 (the The Commission also believes that approval to proposed Supplemental ‘‘Act’’),1 and Rule 19b–4 thereunder,2 proposed Supplemental Rule (a)(2) is Rule (a)(2), which conforms the C2 rules 16 notice is hereby given that on February consistent with Section 6(b)(5) of the to the requirements of Section 6(b)(10) 10, 2011 the Chicago Board Options Act, which provides, among other of the Act. Section 6(b)(10) of the Act, Exchange, Incorporated (‘‘Exchange’’ or things, that the rules of the Exchange enacted under Section 957 of the Dodd- ‘‘CBOE’’) filed with the Securities and must be designed to promote just and Frank Act, does not provide for a Exchange Commission (‘‘Commission’’) equitable principles of trade, remove transition phase, and requires rules of the proposed rule change as described impediments to and perfect the national securities exchanges to prohibit in Items I and II below, which Items mechanism of a free and open market broker voting on the election of a have been prepared by the Exchange. and a national market system, and, in member of the board of directors of an The Commission is publishing this notice to solicit comments on the 13 15 U.S.C. 78f(b)(10). 17 As the Commission stated in approving NYSE 14 See S. Rep. No. 111–176, at 136 (2010). rules prohibiting broker voting in the election of proposed rule change from interested 15 The Commission has not, to date, adopted rules directors, having those with an economic interest in persons and is approving the proposed concerning other significant matters where the company vote the shares, rather than the broker rule change on an accelerated basis. uninstructed broker votes should be prohibited, who has no such economic interest, furthers the although it may do so in the future. Should the goal of enfranchising shareholders. See Securities Commission adopt such rules, we would expect C2 Exchange Act Release No. 60215 (July 1, 2009), 74 20 15 U.S.C. 78s(b)(2). to adopt coordinating rules promptly to comply FR 33293 (July 10, 2009) (SR–NYSE–2006–92). 21 17 CFR 200.30–3(a)(12). with the statute. 18 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). 16 15 U.S.C. 78f(b)(5). 19 See supra notes 9 and 12. 2 17 CFR 240.19b–4.

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I. Self-Regulatory Organization’s proposing to amend CBOE Rule 31.85, Third, the Exchange proposes to add Statement of the Terms of Substance of Giving Proxies by TPH Organizations, new Item 22 to Rule 31.85(b) to provide the Proposed Rule Change which governs when Trading Permit that a TPH Organization may not give a The Exchange proposes to amend its Holder Organizations (‘‘TPH proxy or authorize a proxy to vote proxy voting rules in accordance with Organizations’’) may and may not give a without instructions from beneficial provisions of Section 957 of the Dodd- proxy to vote stock without instructions owners when the matter to be voted Frank Wall Street Reform and Consumer from the beneficial owner of the shares. upon involves any other significant Protection Act (the ‘‘Dodd-Frank Act’’). First, Item 19 of CBOE Rule 31.85(b) matter, as determined by the 8 The text of the rule proposal is available already prohibits TPH Organizations Commission, by rule. on the Exchange’s Web site (http:// from giving a proxy to vote shares Fourth, the Exchange is proposing to www.cboe.org/legal), at the Exchange’s without instructions from beneficial add the words ‘‘or authorize’’ in certain Office of the Secretary and at the owners when the matter to be voted places throughout CBOE Rule 31.85 to Commission. upon is the election of directors (other clarify that the rule includes not only than in the case of an issuer registered the giving of a proxy but also the II. Self-Regulatory Organization’s under the Investment Company Act, authorization of such proxy. Statement of the Purpose of, and provided the matter is not the subject of Finally, the Exchange is proposing to Statutory Basis for, the Proposed Rule a counter-solicitation). Therefore the amend Appendix A to the rules of the Change Exchange is proposing to simply amend CBOE Stock Exchange, LLC (‘‘CBSX,’’ In its filing with the Commission, the Item 19 so that the text is consistent the CBOE’s stock trading facility). self-regulatory organization included with the language in Section 6(b)(10)(B) Appendix A lists the rules contained in statements concerning the purpose of of the Act.6 Chapters 1 through 29 of the Exchange and basis for the proposed rule change Second, the Exchange proposes to add Rules that are applicable to the trading and discussed any comments it received new Item 21 (and related commentary) of equity securities on CBSX. The on the proposed rule change. The text to CBOE Rule 31.85(b) to provide that a Exchange is proposing to amend of those statements may be examined at TPH Organization may not give a proxy Appendix A to include a cross reference the places specified in Item IV below. or authorize a proxy to vote without to CBOE Rule 31.85 in order to make The Exchange has prepared summaries, instructions from beneficial owners clear that CBOE Rule 31.85 regarding set forth in sections A, B, and C below, when the matter to be voted upon the giving of proxies by TPH of the most significant parts of such relates to executive compensation. The Organizations applies to CBSX TPH statements. proposed commentary to Item 21 would Organizations as well as CBOE TPH clarify that a matter relating to executive Organizations. A. Self-Regulatory Organization’s compensation would include, among 2. Statutory Basis Statement of the Purpose of, and the other things, the items referred to in Statutory Basis for, the Proposed Rule Section 14A of the Act (added by The Exchange believes the proposed Change Section 951 of the Dodd-Frank Act), rule change is consistent with the Act 9 1. Purpose including (i) an advisory vote to and the rules and regulations approve the compensation of thereunder and, in particular, the Section 957 of the Dodd-Frank Act executives, (ii) a vote on whether to requirements of Section 6(b) of the adopted new Section 6(b)(10) of the 10 hold such an advisory vote every one, Act. Specifically, the Exchange Act,3 which requires the rules of each two or three years, and (iii) an advisory believes the proposed rule change is national securities exchange to prohibit 11 vote to approve any type of consistent with the Section 6(b)(10) any member that is not the beneficial compensation (whether present, requirements that all national securities owner of a security registered under deferred, or contingent) that is based on exchanges adopt rules prohibiting Section 12 of the Act 4 from granting a or otherwise relates to an acquisition, members from voting, without receiving proxy to vote the security in connection merger, consolidation, sale or other instructions from the beneficial owner with certain shareholder votes, unless disposition of all or substantially all of of shares, on the election of a member the beneficial owner of the security has the assets of an issuer and the aggregate of a board of directors of an issuer instructed the member to vote the proxy total of all such compensation that may (except for a vote with respect to the in accordance with the voting (and the conditions upon which it may) uncontested election of a member of the instructions of the beneficial owner. The be paid or become payable to or on board of directors of any investment shareholder votes covered by Section behalf of an executive officer. In company registered under the 957 include any vote with respect to (i) addition, a TPH Organization may not Investment Company Act of 1940), the election of a member of the board of give or authorize a proxy to vote executive compensation, or any other directors of an issuer (except for a vote without instructions on a matter relating significant matter, as determined by the with respect to the uncontested election to executive compensation, even if such Commission, by rule. The Exchange also of a member of the board of directors of matter would otherwise qualify for an believes the proposed rule change is any investment company registered 12 exception from the requirements of Item consistent with the Section 6(b)(5) under the Investment Company Act of 12, Item 13 or any other Item under requirements that an exchange have 1940 (the ‘‘Investment Company Act’’), CBOE Rule 31.85. Any vote on these or (ii) executive compensation, or (iii) any similar executive compensation-related the commentary to Item 20 so there is consistent other significant matter, as determined formatting of the various commentaries that appear matters would be subject to the by the Commission, by rule.5 throughout the rule. requirements of CBOE Rule 31.85, as 8 Accordingly, in order to carry out the The Exchange notes that the Commission has amended.7 not at this time identified other significant matters requirements of Section 957 of the with respect to which TPH Organizations should be Dodd-Frank Act, the Exchange is 6 See 15 U.S.C. 78f(b)(10)(B). prohibited from voting uninstructed shares. 9 7 The Exchange is also proposing to add cross- 15 U.S.C. 78a et seq. 3 15 U.S.C. 78f(b)(10). referencing commentary related to new Item 21 in 10 15 U.S.C. 78f(b). 4 15 U.S.C. 78l. Items 12 and 13. The Exchange is also proposing 11 15 U.S.C. 78f(b)(10). 5 15 U.S.C. 78f(b)(10)(B). a non-substantive change to include a heading for 12 15 U.S.C. 78f(b)(5).

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rules that are designed to prevent All submissions should refer to File is consistent with Section 6(b)(10) 15 of fraudulent and manipulative acts and Number SR–CBOE–2011–017. This file the Act, which requires that national practices, to promote just and equitable number should be included on the securities exchanges adopt rules principles of trade, to remove subject line if e-mail is used. To help the prohibiting members that are not impediments to, and perfect the Commission process and review your beneficial holders of a security from mechanism of a free and open market comments more efficiently, please use voting uninstructed proxies with respect and, in general, to protect investors and only one method. The Commission will to the election of a member of the board the public interest. The Exchange is post all comments on the Commission’s of directors of an issuer (except for adopting the proposed rule changes to Internet Web site (http://www.sec.gov/ uncontested elections of directors for comply with the requirements of rules/sro.shtml). Copies of the companies registered under the Section 957 of the Dodd-Frank Act, and submission, all subsequent Investment Company Act), executive therefore believes the proposed rule amendments, all written statements compensation, or any other significant changes to be consistent with Section with respect to the proposed rule matter, as determined by the 6(b)(5) of the Act, particularly with change that are filed with the Commission, by rule. The Commission respect to the protection of investors Commission, and all written also believes that the proposal is and the public interest. Finally, the communications relating to the consistent with Section 6(b)(5) 16 of the Exchange believes the proposed changes proposed rule change between the Act, which provides, among other to Appendix A of the CBSX Rules to Commission and any person, other than things, that the rules of the Exchange incorporate a cross reference to CBOE those that may be withheld from the must be designed to promote just and Rule 31.85 is consistent with Section public in accordance with the equitable principles of trade, remove 6(b)(5) of the Act, particularly with provisions of 5 U.S.C. 552, will be impediments to and perfect the respect to the protection of investors available for Web site viewing and mechanism of a free and open market and the public interest, because the printing in the Commission’s Public and a national market system, and, in changes would make it clear that CBOE Reference Room, 100 F Street, NE., general, to protect investors and the Rule 31.85 (regarding the giving of Washington, DC 20549, on official public interest, and are not designed to proxies by TPH Organizations) applies business days between the hours of 10 permit unfair discrimination between to CBSX TPH Organizations as well as a.m. and 3 p.m. Copies of such filing customers, issuers, brokers, or dealers. CBOE TPH Organizations. also will be available for inspection and The Commission believes that the copying at the principal office of the proposal is consistent with Section B. Self-Regulatory Organization’s CBOE. All comments received will be 6(b)(10) of the Act because it adopts Statement on Burden on Competition posted without change; the Commission revisions that comply with that section. CBOE does not believe that the does not edit personal identifying As noted in the accompanying Senate proposed rule change will impose any information from submissions. You Report, Section 957, which adopts burden on competition not necessary or should submit only information that Section 6(b)(10), reflects the principle appropriate in furtherance of the you wish to make available publicly. All that ‘‘final vote tallies should reflect the purposes of the Act. submissions should refer to File wishes of the beneficial owners of the Number SR–CBOE–2011–017 and stock and not be affected by the wishes C. Self-Regulatory Organization’s should be submitted on or before March of the broker that holds the shares.’’ 17 Statement on Comments on the 16, 2011. The proposed rule change will make Proposed Rule Change Received From CBOE rules compliant with the new Members, Participants, or Others IV. Commission’s Findings and Order requirements of Section 6(b)(10) by Granting Accelerated Approval of the The Exchange neither solicited nor prohibiting broker-dealers, who are not Proposed Rule Change received comments on the proposal. beneficial owners of a security, from In its filing, the Exchange requested voting uninstructed shares with respect III. Solicitation of Comments that the Commission approve the to any matter on executive Interested persons are invited to proposal on an accelerated basis. The compensation or any other significant submit written data, views, and Exchange stated that it believed good matter, as determined by the arguments concerning the foregoing, cause existed to grant accelerated Commission, by rule.18 including whether the proposed rule approval because Section 957 of the The Commission believes that the change is consistent with the Act. Dodd-Frank Act does not provide for a proposal is consistent with Section Comments may be submitted by any of transition period and because the the following methods: proposed rule text is based upon New 15 15 U.S.C. 78f(b)(10). York Stock Exchange (‘‘NYSE’’) Rule 16 15 U.S.C. 78f(b)(5). Electronic Comments 17 452.13 See S. Rep. No. 111–176, at 136 (2010). • 18 As noted above, Section 6(b)(10) also prohibits Use the Commission’s Internet After careful consideration, the broker voting for director elections, except for comment form (http://www.sec.gov/ Commission finds that the proposed uncontested director elections of registered rules/sro.shtml); or rule change is consistent with the investment companies. The Commission notes that • Send an e-mail to rule- the Exchange already prohibits broker voting in requirements of the Act and the rules director elections except for uncontested director [email protected]. Please include File and regulations thereunder applicable to elections for registered investment companies and Number SR–CBOE–2011–017 on the a national securities exchange.14 The is merely proposing to amend Item 19 so that the subject line. Commission believes that the proposal text is consistent with the language in Section 6(b)(10) of the Act. See CBOE Rule 31.85(b)(19). As Paper Comments to other matters, as determined by the Commission, 13 See Securities Exchange Act Release 62874 by rule, the Commission has not, to date, adopted Send paper comments in triplicate to (September 9, 2010), 75 FR 56152 (September 15, rules concerning other significant matters where Elizabeth M. Murphy, Secretary, 2010). uninstructed broker votes should be prohibited, 14 In approving this rule change, the Commission although it may do so in the future. Should the Securities and Exchange Commission, notes that it has considered the proposed rule’s Commission adopt such rules, we would expect the 100 F Street, NE., Washington, DC impact on efficiency, competition, and capital Exchange to adopt coordinating rules promptly to 20549–1090. formation. See 15 U.S.C. 78c(f). comply with the statute.

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6(b)(5) of the Act because the proposal Section 6(b)(10) of the Act, enacted President’s major disaster declaration on will further investor protection and the under Section 957 of the Dodd-Frank 02/11/2011, Private Non-Profit public interest by assuring that Act, does not provide for a transition organizations that provide essential shareholder votes on executive phase, and requires rules of national services of governmental nature may file compensation matters are made by those securities exchanges to prohibit, among disaster loan applications at the address with an economic interest in the other things, broker voting on executive listed above or other locally announced company, rather than by a broker that compensation. The Commission locations. has no such economic interest, which believes that good cause exists to grant The following areas have been should enhance corporate governance accelerated approval to the Exchange’s determined to be adversely affected by and accountability to shareholders.19 proposal, because it will conform CBOE the disaster: The Commission notes that the Rule 31.85 to the requirements of Primary Counties: Kane, Washington. CBOE’s new rule prohibiting Section 6(b)(10) of the Act. Moreover, The Interest Rates are: uninstructed broker votes on executive the Commission notes that the proposed compensation covers the specific items changes are based on NYSE Rule 452.21 Percent identified in Section 951 of the Dodd- V. Conclusion Frank Act, as well as any other matter For Physical Damage: It is therefore ordered, pursuant to Non-Profit Organizations With concerning executive compensation, Credit Available Elsewhere .. 3.250 and has been drafted broadly to reflect Section 19(b)(2) of the Act,22 that the proposed rule change (SR–CBOE–2011– Non-Profit Organizations With- the requirements of Section 6(b)(10) of out Credit Available Else- the Act. The proposed rule language 017) be, and it hereby is, approved on where ...... 3.000 also specifically states that a broker vote an accelerated basis. For Economic Injury: on any executive compensation matter For the Commission, by the Division of Non-Profit Organizations With- would not be permitted even if it would Trading and Markets, pursuant to delegated out Credit Available Else- otherwise qualify for an exception from authority.23 where ...... 3.000 any item under Rule 31.85. The Cathy H. Ahn, Commission believes this provision will Deputy Secretary. The number assigned to this disaster make clear that any past practice or [FR Doc. 2011–3982 Filed 2–22–11; 8:45 am] for physical damage is 12468B and for economic injury is 12469B. interpretation that may have permitted BILLING CODE 8011–01–P a broker vote on an executive (Catalog of Federal Domestic Assistance compensation matter, under existing Numbers 59002 and 59008) rules, will no longer be applicable and SMALL BUSINESS ADMINISTRATION Roger B. Garland, is superseded by the newly adopted [Disaster Declaration #12468 and #12469] Acting Associate Administrator for Disaster provisions. Assistance. Finally, the Commission notes that Utah Disaster #UT–00009 [FR Doc. 2011–3947 Filed 2–22–11; 8:45 am] the changes to reflect (i) that the CBOE rules prohibit not only the giving of a AGENCY: U.S. Small Business BILLING CODE 8025–01–P proxy, but also the authorization of the Administration. proxy and (ii) that CBOE Rule 31.85 ACTION: Notice. SMALL BUSINESS ADMINISTRATION regarding the giving of proxies by TPH Organizations applies to CBSX TPH SUMMARY: This is a Notice of the [Disaster Declaration #12465 and #12466] Organizations as well as CBOE TPH Presidential declaration of a major Organization, should help to clarify the disaster for Public Assistance Only for New Jersey Disaster Number NJ–00019 the State of Utah (FEMA–1955–DR), intent of the CBOE proxy rules and is AGENCY: U.S. Small Business consistent with the requirements of dated 02/11/2011. Incident: Severe Winter Storms and Administration. Section 6 of the Act. ACTION: Amendment 1. Based on the above, the Commission Flooding. Incident Period: 12/20/2010 through believes that the Exchange’s proposal 12/24/2010. SUMMARY: This is an amendment of the will further the purposes of Sections Effective Date: 02/11/2011. Presidential declaration of a major 6(b)(5) and 6(b)(10) of the Act because Physical Loan Application Deadline disaster for Public Assistance Only for it should enhance corporate Date: 04/12/2011. the State of NEW JERSEY (FEMA— accountability to shareholders. The rule Economic Injury (EIDL) Loan 1954—DR), dated 02/04/2011. filing should also serve to fulfill the Application Deadline Date: 11/14/2011. Incident: Severe Winter Storm and Congressional intent in adopting ADDRESSES: Submit completed loan Snowstorm. Section 6(b)(10) of the Act. applications to: U.S. Small Business Incident Period: 12/26/2010 through The Commission also finds good Administration, Processing and 12/27/2010. cause, pursuant to Section 19(b)(2) of Disbursement Center, 14925 Kingsport Effective Date: 02/11/2011. the Act,20 for approving the proposed Road, Fort Worth, TX 76155. Physical Loan Application Deadline rule change prior to the 30th day after Date: 04/05/2011. FOR FURTHER INFORMATION CONTACT: A. the date of publication of notice in the Economic Injury (EIDL) Loan Escobar, Office of Disaster Assistance, Federal Register. As noted above, Application Deadline Date: 11/04/2011. U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, ADDRESSES: Submit completed loan 19 As the Commission stated in approving NYSE applications to: U.S. Small Business rules prohibiting broker voting in the election of Washington, DC 20416. Administration, Processing and directors, having those with an economic interest in SUPPLEMENTARY INFORMATION: Notice is Disbursement Center, 14925 Kingsport the company vote the shares, rather than the broker hereby given that as a result of the who has no such economic interest, furthers the Road, Fort Worth, TX 76155. goal of enfranchising shareholders. See Securities FOR FURTHER INFORMATION CONTACT Exchange Act Release No. 60215 (July 1, 2009), 74 21 See note 13, supra. : A. FR 33293 (July 10, 2009) (SR–NYSE–2006–92). 22 15 U.S.C. 78s(b)(2). Escobar, Office of Disaster Assistance, 20 15 U.S.C. 78s(b)(2). 23 17 CFR 200.30–3(a)(12). U.S. Small Business Administration,

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409 3rd Street, SW., Suite 6050, SUPPLEMENTARY INFORMATION: The Small academic and private-sector programs Washington, DC 20416. Business Jobs Act of 2010 authorizes the that aid small businesses in order to SUPPLEMENTARY INFORMATION: The notice U.S. Small Business Administration to provide seamless, non-duplicative of the President’s major disaster establish a 3-year pilot program, known export promotion assistance. declaration for Private Non-Profit as the State Trade and Export Promotion SBA expects to issue awards under organizations in the State of NEW (STEP) Grant Program, to make grants to this Program Announcement totaling JERSEY, dated 02/04/2011, is hereby States to assist eligible small business the full FY 2011 appropriated amount of amended to include the following areas concerns. The objective of the STEP $30,000,000. Individual State project as adversely affected by the disaster. Grant Program is to increase the number award amounts will vary based on the State’s proposed project plan and Primary Counties: Atlantic, of small businesses that are exporting, budget. The Federal share of project Cumberland. and increase the value of exports by costs for grants to the 10 states with the All other information in the original small businesses in the States. highest number of exporters that are declaration remains unchanged. The applicants’ proposed activities for small businesses may include: small business concerns will not exceed (Catalog of Federal Domestic Assistance • Participation in a foreign trade 40% of the $30 million appropriation. Numbers 59002 and 59008) mission, The other 60% will be reserved for the • A foreign market sales trip, remaining States. The States with the Roger B. Garland, • A subscription to services provided highest number of small business Acting Associate Administrator for Disaster by the Department of Commerce, exporters will be determined based on Assistance. • The payment of website foreign the latest data available from the [FR Doc. 2011–3949 Filed 2–22–11; 8:45 am] language translation fees, Department of Commerce. BILLING CODE 8025–01–P • The design of international The Federal share of project cost for marketing products or campaigns, a State that has a high export volume • An export trade show exhibit, will be 65%. The Federal share of SMALL BUSINESS ADMINISTRATION • Participation in training workshops, project cost for a State that does not • Office of International Trade; State Any other export initiative deemed have a high export volume will be 75%. Trade and Export Promotion (STEP) appropriate by SBA’s Associate (The Associate Administrator for the Grant Program Administrator of the Office of SBA Office of International Trade will International Trade (OIT) that does not determine which States have high AGENCY: U.S. Small Business duplicate the services of other SBA export volume). The State must match Administration (SBA). resource partners. These other export the remainder of project cost. The match ACTION: Notice of grant opportunity to initiatives may include, but are not must be comprised of not less than 50% States. limited to, projects that increase direct cash and not more than 50% of indirect and indirect supply chain exporting; costs and in-kind contributions. Eligible Applicants: Each of the export match-making events; formation Matching funds may not be derived several States, the District of Columbia, of export outreach teams composed of from any Federal program. the Commonwealth of Puerto Rico, the State, local, Federal, etc. personnel; FOR FURTHER INFORMATION CONTACT: E- U.S. Virgin Islands, Guam, and sector-specific projects unique to the mail questions about the STEP Grant American Samoa. State’s environment/geography/ Program to [email protected]. SUMMARY: The SBA plans to issue international relationships; projects to Dated: February 17, 2011. Program Announcement No. OIT– develop and use technology for Luz Hopewell, STEP–2011–01 to invite the States, the exporting; reverse trade missions; and District of Columbia and the U.S. Acting Associate Administrator, Office of projects to increase lender readiness for International Trade. Territories to apply for a STEP grant to financing export trade. carry out export promotion programs [FR Doc. 2011–4009 Filed 2–22–11; 8:45 am] In making grants, SBA may give BILLING CODE 8025–01–P that assist eligible small business priority to an application that focuses concerns to become exporters and on socially and economically increase the value of small business U.S. disadvantaged small businesses, DEPARTMENT OF STATE exports. STEP grants will be awarded on women-owned small businesses, a competitive basis. The funding veteran and service-connected disabled [Public Notice: 7344; OMB Control Number instrument is a cooperative agreement. veteran-owned small businesses, or 1405–0134] A state may not submit more than 1 rural small businesses as part of an application for a grant under the export promotion program. 60-Day Notice of Proposed Information program. Awards will be made for a State recipients are encouraged to Collection: DS–157, Supplemental project period of 12 months from the work collaboratively with the SBA Nonimmigrant Visa Application date of award. A state may apply each District Offices, SBA regional managers Federal fiscal year that Congressional ACTION: Notice of request for public at U.S. Export Assistance Centers comments. appropriations are made available (USEAC) and SBA resource partners throughout the 3-year term of the (i.e., Women’s Business Centers (WBCs), SUMMARY: The Department of State is program. Small Business Trade Development seeking Office of Management and DATES: Program Announcement No. Centers (SBTDC), Small Business Budget (OMB) approval for the OIT–STEP–2011–01 will be posted on Development Centers (SBDC), Veterans information collection described below. http://www.Grants.gov on March 1, Business Outreach Centers (VBOC) and The purpose of this notice is to allow 60 2011. The application period will be SCORE) to coordinate their efforts to days for public comment in the Federal March 1, 2011 through April 26, 2011. promote trade and avoid duplication. Register preceding submission to OMB. Awards for the first year of the grant Also, the States are encouraged to fully We are conducting this process in program will be issued in the summer utilize the resources of other Federal, accordance with the Paperwork of 2011. state and local government agencies, Reduction Act of 1995.

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• Title of Information Collection: Abstract of Proposed Collection • Average Hours Per Response: 10. • Supplemental Nonimmigrant Visa Applicants legally required to provide Total Estimated Burden: 1,000 Application. additional security and background hours. • • Frequency: On occasion. OMB Control Number: 1405–0134. information who do not use the Online • • Obligation to Respond: Required to Type of Request: Extension of a Application for Nonimmigrant Visa Obtain or Retain a Benefit. Currently Approved Collection. (DS–160) will supplement the • Originating Office: Bureau of Application for Nonimmigrant Visa DATES: The Department will accept Consular Affairs, Department of State (DS–156) by using this form to apply for comments from the public up to 60 days (CA/VO). a nonimmigrant visa to enter the United from February 23, 2011. • Form Number: DS–157. States. U.S. embassies and consulates ADDRESSES: Direct comments and • Respondents: Nonimmigrant visa will use the data provided in the Form questions to Eric Woodard, Executive applicants legally required to provide DS–157 in conjunction with the DS–156 Director to the U.S. National additional security and background to help determine whether aliens are Commission for UNESCO at the information. • eligible to receive nonimmigrant visas. Department of State, who may be Estimated Number of Respondents: reached at 202–663–0024. You may 150,000. Methodology • submit comments by any of the Estimated Number of Responses: The DS–157 is completed by following methods: 150,000. applicants online or, in exceptional • E-mail: [email protected]. • Average Hours Per Response: 1 circumstances, in hard copy at the time • Mail (paper, disk, or CD–ROM hour. • of the interview. submissions): Eric Woodard, Office of Total Estimated Burden: 150,000. UNESCO Affairs, Department of State, • Frequency: Once per respondent. Dated: February 11, 2011. • 2121 Virginia Avenue, NW., #6200, Obligation to Respond: Required to David T. Donahue, Washington, DC 20037. Obtain or Retain a Benefit. Deputy Assistant Secretary, Bureau of • Fax: 202–663–0035. Consular Affairs, Department of State. DATES: The Department will accept FOR FURTHER INFORMATION CONTACT: You comments from the public up to 60 days [FR Doc. 2011–4051 Filed 2–22–11; 8:45 am] may obtain copies of the proposed from February 23, 2011. BILLING CODE 4710–06–P information, collection, details ADDRESSES: You may submit comments regarding applying for this privately by any of the following methods: DEPARTMENT OF STATE funded fellowship, and supporting • E-mail: [email protected]. documents from Eric Woodard, • Mail (paper, disk, or CD–ROM [Public Notice: 7343; OMB 1405–0180] Executive Director, U.S. National submissions): Chief, Legislation and Commission for UNESCO, who may be Regulation Division, Visa Services—DS– 60-Day Notice of Proposed Information reached at 202–663–0024 or at 157 Reauthorization, 2401 E. Street, Collection: DS–7652, U.S. National [email protected]. NW., Washington, DC 20520–30106. Commission for UNESCO Laura W. SUPPLEMENTARY INFORMATION: • Fax: (202) 663–3898. Bush Traveling Fellowship You must include the DS form We are soliciting public comments to number (if applicable), information ACTION: Notice of request for public permit the Department to: • Evaluate whether the proposed collection title, and OMB control comments. information collection is necessary for number in any correspondence. SUMMARY: The Department of State is the proper performance of our FOR FURTHER INFORMATION CONTACT: seeking Office of Management and functions. Direct requests for additional Budget (OMB) approval for the • Evaluate the accuracy of our information regarding the collection information collection described below. estimate of the burden of the proposed listed in this notice, including requests The purpose of this notice is to allow 60 collection, including the validity of the for copies of the proposed information days for public comment in the Federal methodology and assumptions used. collection and supporting documents, to Register preceding submission to OMB. • Enhance the quality, utility, and Stefanie Claus of Visa Services, U.S. We are conducting this process in clarity of the information to be Department of State, 2401 E. Street, accordance with the Paperwork collected. NW., L–603, Washington, DC 20520, Reduction Act of 1995. • Minimize the reporting burden on who may be reached at (202) 663–2910. • Title of Information Collection: U.S. those who are to respond, including the SUPPLEMENTARY INFORMATION: National Commission for UNESCO use of automated collection techniques We are soliciting public comments to Laura W. Bush Traveling Fellowship. or other forms of technology. permit the Department to: • OMB Control Number: 1405–0180. Abstract of Proposed Collection • Evaluate whether the proposed • Type of Request: Extension of a information collection is necessary for currently approved collection. Fellowship applicants, U.S. citizen the proper performance of our • Originating Office: Bureau of students at U.S. colleges and functions. International Organization Affairs, universities, will submit descriptions of • Evaluate the accuracy of our Office of UNESCO Affairs, Executive self-designed proposals for brief travel estimate of the burden of the proposed Secretariat U.S. National Commission abroad to conduct work that is collection, including the validity of the for UNESCO (IO/UNESCO). consistent with UNESCO’s substantive methodology and assumptions used. • Form Number: DS–7646. mandate to contribute to peace and • Enhance the quality, utility, and • Respondents: U.S. college and security by promoting collaboration clarity of the information to be university students applying for a among nations through education, the collected. Fellowship. sciences, culture, and communications • Minimize the reporting burden on • Estimated Number of Respondents: in order to further universal respect for those who are to respond, including the 100. justice, for the rule of law and for the use of automated collection techniques • Estimated Number of Responses: human rights and fundamental or other forms of technology. 100. freedoms which are affirmed for the

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peoples of the world, without • Total Estimated Burden: 10,000 DEPARTMENT OF TRANSPORTATION distinction of race, sex, language or hours. religion, by the Charter of the United • Frequency: On occasion. Office of the Secretary Nations. The fellowship is funded • Obligation to Respond: Required to Notice of Applications for Certificates through private donations. The Obtain or Retain a Benefit. information will be reviewed for the of Public Convenience and Necessity purpose of identifying the most DATES: The Department will accept and Foreign Air Carrier Permits Filed meritorious proposals, as measured comments from the public up to 60 days Under Subpart B (Formerly Subpart Q) against the published evaluation from February 23, 2011. During the Week Ending January 22, 2011 criteria. ADDRESSES: You may submit comments Methodology by any of the following methods: The following Applications for • E-mail: [email protected]. Certificates of Public Convenience and The U.S. Department of State, Bureau • Necessity and Foreign Air Carrier of International Organization Affairs, Mail (paper, disk, or CD–ROM submissions): Chief, Legislation and Permits were filed under Subpart B Office of UNESCO Affairs, Executive (formerly Subpart Q) of the Department Secretariat U.S. National Commission Regulations Division, Visa Services— DS–3035 Reauthorization, 2401 E Street, of Transportation’s Procedural for UNESCO (IO/UNESCO) will collect Regulations (See 14 CFR 301.201 et this information via electronic NW., Washington, DC 20520–30106. • seq.). The due date for Answers, submission. Fax: (202) 663–3898. Conforming Applications, or Motions to Dated: February 14, 2011. You must include the DS form Modify Scope are set forth below for Eric Woodard, number (if applicable), information each application. Following the Answer collection title, and OMB control Executive Director, U.S. National Commission period DOT may process the application for UNESCO, Bureau of International number in any correspondence. by expedited procedures. Such Organization Affairs, U.S. Department of FOR FURTHER INFORMATION CONTACT: procedures may consist of the adoption State. Direct requests for additional of a show-cause order, a tentative order, [FR Doc. 2011–4054 Filed 2–22–11; 8:45 am] information regarding the collection or in appropriate cases a final order BILLING CODE 4710–19–P listed in this notice, including requests without further proceedings. for copies of the proposed information Docket Number: DOT–OST–2006– collection and supporting documents, to 24629. DEPARTMENT OF STATE Stefanie Claus of the Visa Services Date Filed: January 18, 2011. Due Date for Answers, Conforming Directorate, U.S. Department of State, [Public Notice: 7342; OMB Control Number Applications, or Motion to Modify 2401 E Street, NW., L–603, Washington, 1405–0135] Scope: Febuary 8, 2011. DC 20522, who may be reached at (202) Description: Application of Yangtze 60-Day Notice of Proposed Information 663–2910. River Express Airlines Co., Ltd. Collection: DS–3035, J–1 Visa Waiver SUPPLEMENTARY INFORMATION: We are requesting an exemption and amended Recommendation Application soliciting public comments to permit foreign air carrier permit authorizing it ACTION: Notice of request for public the Department to: to engage in charter foreign air comments. • Evaluate whether the proposed transportation of property and mail information collection is necessary for between a point or points in the SUMMARY: The Department of State is the proper performance of our People’s Republic of China, on the one seeking Office of Management and functions. hand, and a point or points in the Budget (OMB) approval for the • Evaluate the accuracy of our United States, on the other hand; and a information collection described below. estimate of the burden of the proposed statement of authorization for 54 one- The purpose of this notice is to allow 60 collection, including the validity of the way third/fourth freedom cargo charter days for public comment in the Federal methodology and assumptions used. flights on a Shanghai (PVG)—Qingdao, Register preceding submission to OMB. • Enhance the quality, utility, and China (TAO)—Los Angeles (LAX)— We are conducting this process in clarity of the information to be Shanghai (PVG) routing. accordance with the Paperwork collected. Renee V. Wright, Reduction Act of 1995. • • Title of Information Collection: J–1 Minimize the reporting burden on Program Manager, Docket Operations, Visa Waiver Recommendation those who are to respond, including the Federal Register Liaison. Application. use of automated collection techniques [FR Doc. 2011–3976 Filed 2–22–11; 8:45 am] • OMB Control Number: 1405–0135. or other forms of technology. BILLING CODE 4910–9X–P • Type of Request: Extension of a Abstract of proposed collection: Form Currently Approved Collection. DS–3035 is used to determine the • Originating Office: Bureau of eligibility of a J–1 visa holder for a DEPARTMENT OF TRANSPORTATION Consular Affairs, Department of State waiver of the two-year foreign residence Office of the Secretary (CA/VO). requirement. • Form Number: DS–3035. Methodology: Form DS–3035 is Notice of Applications for Certificates • Respondents: J–1 visa holders mailed to the Waiver Review Division of of Public Convenience and Necessity applying for a waiver of the two-year the Department of State. and Foreign Air Carrier Permits Filed foreign residence requirement. Under Subpart B (Formerly Subpart Q) • Estimated Number of Respondents: Dated: February 11, 2011. David T. Donahue, During the Week Ending January 15, 10,000. 2011 • Estimated Number of Responses: Deputy Assistant Secretary, Bureau of 10,000. Consular Affairs, Department of State. The following Applications for • Average Hours per Response: 1 [FR Doc. 2011–4056 Filed 2–22–11; 8:45 am] Certificates of Public Convenience and hour. BILLING CODE 4710–06–P Necessity and Foreign Air Carrier

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Permits were filed under Subpart B DEPARTMENT OF TRANSPORTATION concerns due to the incumbent (formerly Subpart Q) of the Department member’s completion of their three-year of Transportation’s Procedural Office of the Secretary term appointments on May 30, 2011. Regulations (See 14 CFR 301.201 et. This notice informs the public of the Notice of Applications for Certificates seq.). The due date for Answers, persons selected to fill the vacancies on of Public Convenience and Necessity the NPOAG ARC. Conforming Applications, or Motions to and Foreign Air Carrier Permits Filed FOR FURTHER INFORMATION CONTACT: Modify Scope are set forth below for Under Subpart B (Formerly Subpart Q) Barry Brayer, Special Programs Staff, each application. Following the Answer During the Week Ending January 1, Federal Aviation Administration, period DOT may process the application 2011 by expedited procedures. Such Western-Pacific Region Headquarters, procedures may consist of the adoption The following Applications for P.O. Box 92007, Los Angeles, CA of a show-cause order, a tentative order, Certificates of Public Convenience and 90009–2007, telephone: (310) 725–3800, e-mail: [email protected]. or in appropriate cases a final order Necessity and Foreign Air Carrier without further proceedings. Permits were filed under Subpart B SUPPLEMENTARY INFORMATION: (formerly Subpart Q) of the Department Background Docket Number: DOT–OST–2011– of Transportation’s Procedural 0005. Regulations (See 14 CFR 301.201 et The National Parks Air Tour Date Filed: January 11, 2011. seq.). The due date for Answers, Management Act of 2000 (the Act) was enacted on April 5, 2000, as Public Law Due Date for Answers, Conforming Conforming Applications, or Motions to Modify Scope are set forth below for 106–181. The Act required the Applications, or Motion to Modify establishment of the advisory group Scope: February 1, 2011. each application. Following the Answer period DOT may process the application within 1 year after its enactment. The Description: Application of Hangar 8 by expedited procedures. Such NPOAG was established in March 2001. AOC Limited requesting a foreign air procedures may consist of the adoption The advisory group is comprised of a carrier permit to the full extent of a show-cause order, a tentative order, balanced group of representatives of authorized by the Air Transport or in appropriate cases a final order general aviation, commercial air tour Agreement between the United States without further proceedings. operations, environmental concerns, and the European Community and the Docket Number: DOT–OST–1999– and Native American tribes. The Member States of the European 5140. Administrator of the FAA and the Community to engage it to engage in: Date Filed: December 30, 2010. Director of NPS (or their designees) (i) Foreign charter air transportation of Due Date for Answers, Conforming serve as ex officio members of the persons and property from any point or Applications, or Motion to Modify group. Representatives of the points behind any Member State of the Scope: January 20, 2011. Administrator and Director serve Description: Application of Arrow alternating 1-year terms as chairman of European Union via any point or points Air, Inc. d/b/a Arrow Air requesting to the advisory group. in any Member State and via change the name in which its operating In accordance with the Act, the intermediate points to any point or authority has been issued to: Alpha advisory group provides ‘‘advice, points in the United States and beyond; Cargo Airlines, Inc., d/b/a Alpha Cargo, information, and recommendations to (ii) foreign charter air transportation of and for reissuance of its certificate of the Administrator and the Director— persons and property between any point public convenience and necessity in (1) On the implementation of this title or points in the United States and any that name. [the Act] and the amendments made by point or points in any member of the this title; European Common Aviation Area; Renee V. Wright, (2) On commonly accepted quiet (iii) other charters pursuant to prior Program Manager, Docket Operations, aircraft technology for use in approval requirements; and (iv) Federal Register Liaison. commercial air tour operations over a transportation authorized by any [FR Doc. 2011–3978 Filed 2–22–11; 8:45 am] national park or tribal lands, which will additional route rights made available to BILLING CODE 4910–9X–P receive preferential treatment in a given European Community carriers in the air tour management plan; (3) On other measures that might be future. Hangar 8 further requests DEPARTMENT OF TRANSPORTATION exemption authority to the extent taken to accommodate the interests of visitors to national parks; and necessary to enable it to provide the Federal Aviation Administration (4) At the request of the Administrator services described above pending Membership in the National Parks and the Director, safety, environmental, issuance of a foreign air carrier permit and other issues related to commercial and such additional or other relief as the Overflights Advisory Group Aviation Rulemaking Committee air tour operations over a national park Department may deem necessary or or tribal lands.’’ appropriate. ACTION: Notice. Membership Renee V. Wright, SUMMARY: By Federal Register notice The current NPOAG ARC is made up Program Manager, Docket Operations, (See 75 FR 68023; November 4, 2010) of one member representing general Federal Register Liaison. the National Park Service (NPS) and the aviation, three members representing [FR Doc. 2011–3977 Filed 2–22–11; 8:45 am] Federal Aviation Administration (FAA) the commercial air tour industry, four BILLING CODE 4910–9X–P invited interested persons to apply to members representing environmental fill two vacant positions on the National concerns, and two members Parks Overflights Advisory Group representing Native American interests. (NPOAG) Aviation Rulemaking Current members of the NPOAG ARC Committee (ARC). These notices invited are as follows: interested persons to apply to fill two Heidi Williams representing general vacancies representing environmental aviation; Alan Stephen, Elling

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Halvorson, and Matthew Zuccaro for efficient and safe operation of trains DEPARTMENT OF TRANSPORTATION representing commercial air tour in this area. operations; Chip Dennerlein, Greg Interested parties are invited to Federal Railroad Administration Miller, Kristen Brengel, and Bryan participate in these proceedings by Petition for Waiver of Compliance Faehner representing environmental submitting written views, data, or interests; and Rory Majenty and Ray comments. FRA does not anticipate In accordance with Part 211 of Title Russell representing Native American scheduling a public hearing in 49 Code of Federal Regulations (CFR), tribes. connection with these proceedings since notice is hereby given that the Federal Selection the facts do not appear to warrant a Railroad Administration (FRA) has hearing. If any interested party desires received a request for a waiver of Selected to fill one of the vacancies an opportunity for oral comment, they compliance from certain requirements for environmental concerns, for an should notify FRA, in writing, before of its safety standards. The individual additional term, is returning member the end of the comment period and petition is described below, including Bryan Faehner. Selected to fill the other specify the basis for their request. the party seeking relief, the regulatory vacancy for environmental concerns is All communications concerning these provisions involved, the nature of the Dick Hingson, who will replace Kristen proceedings should identify the relief being requested, and the Brengel. Both these terms begin on May appropriate docket number (e.g., Waiver petitioner’s arguments in favor of relief. 31, 2011. The term of service for Petition Docket Number FRA–2011– Whitewater Valley Railroad NPOAG ARC members is 3 years. 0008) and may be submitted by any of Issued in Hawthorne, CA, on February 10, the following methods: Waiver Petition Docket Number FRA– 2011. • Web site: http:// 2010–0148 Barry Brayer, www.regulations.gov. Follow the online The Whitewater Valley Railroad Manager, Special Programs Staff, Western- instructions for submitting comments. (WVRR) seeks a waiver of compliance Pacific Region. • Fax: 202–493–2251. from certain provisions of the Railroad [FR Doc. 2011–3938 Filed 2–22–11; 8:45 am] • Mail: Docket Operations Facility, Freight Car Safety Standards, i.e. BILLING CODE 4910–13–P U.S. Department of Transportation, 1200 §§ 215.303 and 215.305, which require New Jersey Avenue, SE., W12–140, stenciling of restricted cars; as well as Washington, DC 20590. that of the Reflectorization of Rail DEPARTMENT OF TRANSPORTATION • Hand Delivery: 1200 New Jersey Freight Rolling Stock, i.e. §§ 224.3 and Avenue, SE., Room W12–140, 224.5, which require applying reflectors Federal Railroad Administration Washington, DC 20590, between 9 a.m. on freight cars and locomotives. [Docket Number FRA–2011–0008] and 5 p.m., Monday through Friday, WVRR owns 13 freight cars that are except Federal holidays. older than 50 years from their date of Notice of Application for Approval of Communications received within 45 original construction, and are restricted Discontinuance or Modification of a days of the date of this notice will be by the provision of 49 CFR 215.203(a). Railroad Signal System considered by FRA before final action is WVRR is concurrently seeking special taken. Comments received after that approval to continue to use these cars Pursuant to Title 49 Code of Federal date will be considered as far as under proceeding according to 49 CFR Regulations (CFR) part 235 and 49 practicable. All written communications 215.203(b). U.S.C. 20502(a), the following railroad concerning these proceedings are To support its petition to seek relief has petitioned the Federal Railroad available for examination during regular from the stenciling and reflectorization Administration (FRA) seeking approval business hours (9 a.m.–5 p.m.) at the requirements, WVRR states that it is a for the discontinuance or modification above facility. All documents in the 501(c)(3) non-profit organization. It is an of the signal system, as detailed below. public docket are also available for operating railroad museum dedicated to Applicant: Union Pacific Railroad inspection and copying on the Internet the operation of a historic branch line Company, Mr. William E. Van Trump, at the docket facility’s Web site at railroad, to the restoration of railroad AVP Engineering—Signal/Comm./TCO, http://www.regulations.gov. equipment, and to the conduct of 1400 Douglas Street, STOP 0910, Anyone is able to search the educational railroad programs. The Omaha, Nebraska 68179. electronic form of any written railroad owns and operates 19 miles of The Union Pacific Railroad Company communications and comments track between Metamora and (UP) seeks approval of the proposed received into any of our dockets by the Connersville, Indiana. These tracks are discontinuance of the Automatic Block name of the individual submitting the not part of the general railway system. Signal system on the Strang Subdivision document (or signing the document, if Operating speeds on the line would between control point Tower 68, at submitted on behalf of an association, never be authorized at more than 25 milepost (MP) 0.42, and holding signal business, labor union, etc.). You may miles per hour. ST912, at MP 2, near Englewood, Texas. WVRR states that to support its review DOT’s complete Privacy Act The discontinuance consists of the mission, it operates antiquated freight Statement in the Federal Register removal of six automatic signals as well and passenger cars built prior to 1945, published on April 11, 2000 (Volume as the circuit controllers from five hand- as well as a group of freight cars and 65, Number 70; Page 19477) or at operated switches and one hand- locomotives built after 1945, in public http://www.dot.gov/privacy.html. operated crossover. The hand-operated excursion service as operating historic switches will remain in the application Issued in Washington, DC, on February 16, artifacts. On rare occasions, locomotives area without signal protection. The 2011. and freight cars (including flat, box and application area is to be Yard Limits and Robert C. Lauby, hopper cars) are used to demonstrate shall contain Remote Control Deputy Associate Administrator for typical freight trains of the 1940s–60s. Locomotive operations. The reason Regulatory and Legislative Operations. These operations are sometimes given for the proposed changes is that [FR Doc. 2011–4025 Filed 2–22–11; 8:45 am] chartered programs designed for the signal system is no longer needed BILLING CODE 4910–06–P photographers, film production, and for

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railroad historians. Revenue from these concerning these proceedings are the RoadRailer® and RailRunner® activities is used to further restore/ available for examination during regular equipment on dedicated trains operating maintain these cars for public display. business hours (9 a.m.–5 p.m.) at the on their railroad. On occasion, these locomotives and cars above facility. All documents in the Interested parties are invited to are also used in the maintenance of the public docket are also available for participate in these proceedings by organization’s track. As one of the key inspection and copying on the Internet submitting written views, data, or purposes of the organization is to at the docket facility’s Web site at comments. FRA does not anticipate maintain the historic appearances of its http://www.regulations.gov. scheduling a public hearing in cars and locomotives, compliance with Anyone is able to search the connection with these proceedings since the reflectorization of railroad freight electronic form of any written the facts do not appear to warrant a rolling stock would greatly affect the communications and comments hearing. If any interested party desires historic appearance of this equipment. received into any of our dockets by the an opportunity for oral comment, they Stenciling requirements would also name of the individual submitting the should notify FRA, in writing, before impact the appearance of those cars document (or signing the document, if the end of the comment period and used periodically in maintenance of submitted on behalf of an association, specify the basis for their request. way service. business, labor union, etc.). You may All communications concerning these WVRR further states that it believes review DOT’s complete Privacy Act proceedings should identify the that a number of factors limit the impact Statement in the Federal Register appropriate docket number (e.g., Waiver on the public on its museum line. Main published on April 11, 2000 (65 FR Petition Docket Number FRA–2011– road crossings are signaled, primarily in 19477) or at http://www.dot.gov/ 0002) and may be submitted by any of the City of Connersville, Town of Laurel privacy.html. the following methods: and at US Route 52 in Metamora, Issued in Washington, DC, on February 16, • Web site: http:// Indiana. Other grade crossings are on 2011. www.regulations.gov. Follow the online low volume paved and gravel roads Robert C. Lauby, instructions for submitting comments. • with reflectorized grade crossing signs Deputy Associate Administrator for Fax: 202–493–2251. and posts to draw attention to these Regulatory and Legislative Operations. • Mail: Docket Operations Facility, crossings. Freight car trains seldom run [FR Doc. 2011–4024 Filed 2–22–11; 8:45 am] U.S. Department of Transportation, 1200 at night or during periods of poor BILLING CODE 4910–06–P New Jersey Avenue, SE., W12–140, visibility and are of limited length, Washington, DC 20590. generally fewer than 10 cars with the • Hand Delivery: 1200 New Jersey locomotive still visible at most of its DEPARTMENT OF TRANSPORTATION Avenue, SE., Room W12–140, grade crossings. Washington, DC 20590, between 9 a.m. Interested parties are invited to Federal Railroad Administration and 5 p.m., Monday through Friday, participate in these proceedings by except Federal holidays. submitting written views, data, or Petition for Waiver of Compliance Communications received within 45 comments. FRA does not anticipate In accordance with Part 211 of Title days of the date of this notice will be scheduling a public hearing in 49 Code of Federal Regulations (CFR), considered by FRA before final action is connection with these proceedings since notice is hereby given that the Federal taken. Comments received after that the facts do not appear to warrant a Railroad Administration (FRA) has date will be considered as far as hearing. If any interested party desires received a request for a waiver of practicable. All written communications an opportunity for oral comment, they compliance from certain requirements concerning these proceedings are should notify FRA, in writing, before of its safety standards. The individual available for examination during regular the end of the comment period and petition is described below, including business hours (9 a.m.–5 p.m.) at the specify the basis for their request. the party seeking relief, the regulatory above facility. All documents in the All communications concerning these provisions involved, the nature of the public docket are also available for proceedings should identify the relief being requested, and the inspection and copying on the Internet appropriate docket number (e.g., Waiver petitioner’s arguments in favor of relief. at the docket facility’s Web site at http:// Petition Docket Number FRA–2010– www.regulations.gov. 0148) and may be submitted by any of CSX Transportation, Inc. Anyone is able to search the the following methods: electronic form of any written • Waiver Petition Docket Number FRA– Web site: http:// 2011–0002 communications and comments www.regulations.gov. Follow the online received into any of our dockets by the The CSX Transportation, Inc. (CSXT) instructions for submitting comments. name of the individual submitting the • seeks a waiver of compliance from Fax: 202–493–2251. document (or signing the document, if • certain provisions of Title 49 CFR parts Mail: Docket Operations Facility, submitted on behalf of an association, 231 and 232, concerning the operation U.S. Department of Transportation, 1200 business, labor union, etc.). You may of RoadRailer® and RailRunner® New Jersey Avenue, SE., W12–140, review DOT’s complete Privacy Act equipment on their railroad. Washington, DC 20590. Statement in the Federal Register • Specifically, CSXT seeks relief from Hand Delivery: 1200 New Jersey published on April 11, 2000 (Volume certain provisions of the Railroad Safety Avenue, SE., Room W12–140, 65, Number 70; Page 19477) or at http:// Appliance Standards in 49 CFR part Washington, DC 20590, between 9 a.m. www.dot.gov/privacy.html. and 5 p.m., Monday through Friday, 231, that stipulates the number, except Federal holidays. location, and dimensions for handholds, Issued in Washington, DC, on February 16, Communications received within 45 ladders, sill steps, uncoupling levers, 2011. days of the date of this notice will be and handbrakes. CSXT also seeks relief Robert C. Lauby, considered by FRA before final action is from 49 CFR 231.1, which sets the Deputy Associate Administrator for taken. Comments received after that standard height for drawbars. CSXT Regulatory and Legislative Operations. date will be considered as far as states that this relief is necessary to [FR Doc. 2011–4022 Filed 2–22–11; 8:45 am] practicable. All written communications allow them to operate and commingle BILLING CODE 4910–06–P

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DEPARTMENT OF TRANSPORTATION expedite docketing and public notice. Comments should refer to the Because the sections affected, modes of application number and be submitted in Pipeline and Hazardous Materials transportation, and the nature of triplicate. If confirmation of receipt of Safety Administration application have been shown in earlier comments is desired, include a self- Federal Register publications, they are addressed stamped postcard showing Notice of Applications for Modification not repeated here. Requests for the special permit number. of Special Permit modification of special permits (e.g. to FOR FURTHER INFORMATION CONTACT: provide for additional hazardous AGENCY: Pipeline and Hazardous Copies of the applications are available materials, packaging design changes, Materials Safety Administration for inspection in the Records Center, (PHMSA), DOT. additional mode of transportation, etc.) are described in footnotes to the East Building, PHH–30, 1200 New ACTION: List of applications for application number. Application Jersey Avenue, Southeast, Washington, modification of special permits. numbers with the suffix ‘‘M’’ denote a DC or at http://regulations.gov. SUMMARY: In accordance with the modification request. These This notice of receipt of applications procedures governing the application applications have been separated from for modification of special permit is for, and the processing of, special the new application for special permits published in accordance with Part 107 permits from the Department of to facilitate processing. of the Federal hazardous materials Transportation’s Hazardous Material DATES: Comments must be received on transportation law (49 U.S.C. 5117(b); Regulations (49 CFR Part 107, Subpart or before March 10, 2011. 49 CFR 1.53(b)). B), notice is hereby given that the Office ADDRESS COMMENTS TO: Record Center, Issued in Washington, DC, on February 14, of Hazardous Materials Safety has Pipeline and Hazardous Materials Safety 2011. received the applications described Administration, U.S. Department of Donald Burger, herein. This notice is abbreviated to Transportation, Washington, DC 20590. Chief, Special Permits and Approvals Branch.

Application No. Docket No. Applicant Regulations affected Nature of special permits thereof

8723–M ...... Maine Drilling & Blasting, 49 CFR 172.101; 173.62; To modify the special permit to authorize additional Auburn, NH. 173.242; 176.83; cargo tanks without internal self-closing shutoff 177.848. valves. 12929–M ...... Matheson Tri-Gas, Inc., 49 CFR 173.301(j)(1) ...... To authorize the transportation in commerce of Basking Ridge, NJ. charged DOT specification cylinders, UN speci- fication cylinders and foreign cylinders with alter- native pressure relief device configurations. 14584–M ...... WavesinSolids LLC, State 49 CFR 173.302 and To modify the special permit to authorize additional College, PA. 180.209. cylinders and to allow cylinders to be charged to 110 percent of the usual settled filled pressure or 110 percent of the stamped service service pres- sure (whichever is greater) and to extend the retest period from 5 years to 10. 15073–M ...... Utility Aviation, Inc., 49 CFR 172.101 Column To modify the special permit to authorize the trans- Loveland, CO. (9B), 172.204(c)(3), portation in commerce of an additional Class 8 173.27(b)(2), hazardous material. 175.30(a)(1), 172.200, 172.300 and 172.400.

[FR Doc. 2011–3796 Filed 2–22–11; 8:45 am] Supervision approved the application of By the Office of Thrift Supervision. BILLING CODE 4909–60–M Sunshine Savings MHC, Tallahassee, Sandra E. Evans, Florida, the federal mutual holding Federal Register Liaison. company for Sunshine Savings Bank, [FR Doc. 2011–3901 Filed 2–22–11; 8:45 am] DEPARTMENT OF THE TREASURY Tallahassee, Florida, to convert to the BILLING CODE 6720–01–M stock form of organization. Copies of the Office of Thrift Supervision application are available for inspection by appointment (phone number: 202– [AC–60: OTS Nos. H–4757, H–4519, and 906–5922 or e-mail 17971] [email protected]) at the Sunshine Financial, Inc., Tallahassee Public Reading Room, 1700 G Street, Florida; Approval of Conversion NW., Washington, DC 20552, and the Application OTS Southeast Regional Office, 1475 Peachtree Street, NE., Atlanta, GA Notice is hereby given that on 30309. February 11, 2011, the Office of Thrift Dated: February 15, 2011.

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Part II

Department of Agriculture

Rural Business—Cooperative Service Rural Utilities Service

7 CFR Part 4284 Value-Added Producer Grant Program Interim Rule

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DEPARTMENT OF AGRICULTURE • Hand Delivery/Courier: Submit Unfunded Mandates Reform Act written comments via Federal Express Rural Business—Cooperative Service mail, or other courier service requiring Title II of the Unfunded Mandates a street address, to the Branch Chief, Reform Act of 1995 (UMRA) of Public Rural Utilities Service Regulations and Paperwork Law 104–4 establishes requirements for Management Branch, U.S. Department Federal agencies to assess the effects of 7 CFR Part 4284 of Agriculture, 300 7th Street, SW., 7th their regulatory actions on State, local, Floor, Washington, DC 20024. and tribal governments and the private RIN 0570–AA79 sector. Under section 202 of the UMRA, All written comments will be Rural Development must prepare, to the available for public inspection during Value-Added Producer Grant Program extent practicable, a written statement, regular work hours at the 300 7th Street, including a cost-benefit analysis, for AGENCY: Rural Business—Cooperative SW., 7th Floor address listed above. Service and Rural Utilities Service, proposed and final rules with ‘‘Federal USDA. FOR FURTHER INFORMATION CONTACT: mandates’’ that may result in Andrew Jermolowicz, USDA, Rural expenditures to State, local, or tribal ACTION: Interim rule. Development, Rural Business- governments, in the aggregate, or to the SUMMARY: The Food, Conservation, and Cooperative Service, Room 4016, South private sector, of $100 million or more Energy Act of 2008 (the Act), amends Agriculture Building, Stop 3250, 1400 in any one year. With certain section 231 of the Agricultural Risk Independence Avenue, SW., exceptions, section 205 of the UMRA Protection Act of 2000, which Washington, DC 20250–3250, requires Rural Development to identify established the Value-Added Producer Telephone: (202) 720–7558, E-mail and consider a reasonable number of Grant Program. This program will be [email protected]. regulatory alternatives and adopt the administered by the Rural Business- SUPPLEMENTARY INFORMATION: least costly, most cost-effective, or least Cooperative Service. Under the interim burdensome alternative that achieves rule, grants will be made to help eligible Executive Order 12866 the objectives of the rule. producers of agricultural commodities This interim rule has been reviewed This interim rule contains no Federal enter into or expand value-added under Executive Order (EO) 12866 and mandates (under the regulatory activities including the development of has been determined not significant by provisions of Title II of the UMRA) for feasibility studies, business plans, and the Office of Management and Budget. State, local, and tribal governments or marketing strategies. The program will The EO defines a ‘‘significant regulatory the private sector. Thus, this rule is not also provide working capital for action’’ as one that is likely to result in subject to the requirements of sections expenses such as implementing an a rule that may: (1) Have an annual 202 and 205 of the UMRA. existing viable marketing strategy. The effect on the economy of $100 million Environmental Impact Statement Agency will implement the program to or more or adversely affect, in a material meet the goals and requirements of the way, the economy, a sector of the This document has been reviewed in Act. economy, productivity, competition, accordance with 7 CFR part 1940, The program provides a priority for jobs, the environment, public health or subpart G, ‘‘Environmental Program.’’ funding for projects that contribute to safety, or State, local, or tribal Rural Development has determined that opportunities for beginning farmers or governments or communities; (2) create this action does not constitute a major ranchers, socially disadvantaged farmers a serious inconsistency or otherwise Federal action significantly affecting the or ranchers, and operators of small- and interfere with an action taken or quality of the human environment and, medium-sized family farms and planned by another agency; (3) in accordance with the National ranches. Further, it creates two reserved materially alter the budgetary impact of Environmental Policy Act (NEPA) of funds each of which will include 10 entitlements, grants, user fees, or loan 1969, 42 U.S.C. 4321 et seq., an percent of program funds each year to programs or the rights and obligations of Environmental Impact Statement is not support applications that support recipients thereof; or (4) raise novel required. opportunities for beginning and socially legal or policy issues arising out of legal Executive Order 12988, Civil Justice disadvantaged farmers and ranchers and mandates, the President’s priorities, or Reform for proposed projects that develop mid- the principles set forth in this EO. tier value marketing chains. The Agency conducted a cost-benefit This interim rule has been reviewed DATES: This interim rule is effective analysis to fulfill the requirements of under Executive Order 12988, Civil March 25, 2011. Written comments on Executive Order 12866. The Agency has Justice Reform. Except where specified, this interim rule must be received on or identified potential benefits to all State and local laws and regulations before April 25, 2011. prospective program participants and that are in direct conflict with this rule ADDRESSES: You may submit comments the Agency that are associated with will be preempted. Federal funds carry to this interim rule by any of the improving the availability of funds to Federal requirements. No person is following methods: help producers (farmers and harvesters) required to apply for funding under this • Federal eRulemaking Portal: Go to expand their customer base for the program, but if they do apply and are http://www.regulations.gov. Follow the products or commodities that they selected for funding, they must comply instructions for submitting comments produce. This results in a greater with the requirements applicable to the electronically. portion of the revenues derived from the Federal program funds. This rule is not • Mail: Submit written comments via value-added activity being made retroactive. It will not affect agreements the U.S. Postal Service to the Branch available to the producer of the product. entered into prior to the effective date Chief, Regulations and Paperwork These benefits are vital to the success of of the rule. Before any judicial action Management Branch, U.S. Department individual producers, farmer or rancher may be brought regarding the provisions of Agriculture, Stop 0742, 1400 cooperatives, agriculture producer of this rule, the administrative appeal Independence Avenue, SW., groups, and majority-controlled provisions of 7 CFR parts 11 and 780 Washington, DC 20250–0742. producer based business ventures. must be exhausted.

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Executive Order 13132, Federalism all States have chosen to participate in Expiration Date: Three years from the It has been determined, under the intergovernmental review process. A date of approval. Executive Order 13132, Federalism, that list of participating States is available at Abstract: The collection of this interim rule does not have the following Web site: http:// information is vital to the Agency to sufficient Federalism implications to www.whitehouse.gov/omb/grants/ make decisions regarding the eligibility warrant the preparation of a Federalism spoc.html. of grant recipients in order to ensure Assessment. The provisions contained Executive Order 13175, Consultation compliance with the regulations and to in the rule will not have a substantial and Coordination With Indian Tribal ensure that the funds obtained from the direct effect on States or their political Governments Government are being used for the subdivisions or on the distribution of purposes for which they were awarded. power and responsibilities among the USDA will undertake, within 6 Entities seeking funding under this various government levels. months after this rule becomes effective, program will have to submit a series of Tribal consultation sessions applications that include information on Regulatory Flexibility Act to gain input by elected Tribal officials the entity’s eligibility, information on The Regulatory Flexibility Act (RFA) or their designees concerning the impact each of the evaluation criteria, (5 U.S.C. 601–602) generally requires an of this rule on Tribal governments, certification of matching funds, agency to prepare a regulatory flexibility communities and individuals. These verification of cost-share matching analysis of any rule subject to notice sessions will establish a baseline of funds, a business plan, and a feasibility and comment rulemaking requirements consultation for future actions, should study. This information will be used to under the Administrative Procedure Act any be necessary, regarding this rule. determine applicant eligibility and to or any other statute unless the agency Reports from these sessions for ensure that funds are used for certifies that the rule will not have an consultation will be made part of the authorized purposes. economically significant impact on a USDA annual reporting on Tribal Once an entity has been approved and substantial number of small entities. Consultation and Collaboration. USDA their application accepted for funding, Small entities include small businesses, will respond in a timely and meaningful the entity would be required to sign a small organizations, and small manner to all Tribal government Letter of Conditions and a Grant governmental jurisdictions. requests for consultation concerning Agreement. The Grant Agreement In compliance with the RFA, Rural this rule and will provide additional outlines the approved use of funds and Development has determined that this venues, such as webinars and actions, as well as the restrictions and action will not have an economically teleconferences, to periodically host applicable laws and regulations that significant impact on a substantial collaborative conversations with Tribal apply to the award. Grantees must number of small entities for the reasons leaders and their representatives maintain a financial system and, in discussed below. While, the majority of concerning ways to improve this rule in accordance with Departmental producers of agricultural commodities Indian country. regulations, property and procurement expected to participate in this Program The policies contained in this rule standards. Grantees must submit semi- will be small businesses, the average would not have Tribal implications that annual financial performance reports cost to participants is estimated to be preempt Tribal law. that include a comparison of approximately 20 percent of the total Programs Affected accomplishments with the objectives mandatory funding available to the stated in the application and a final program in fiscal years 2009 through The Value-Added Producer Grant performance report. Finally, grantees 2012. Further, this regulation only program is listed in the Catalog of must provide copies of supporting affects producers that choose to Federal Domestic Assistance under documentation and/or project participate in the program. Lastly, small Number 10.352. deliverables for completed tasks (e.g., entity applicants will not be affected to Paperwork Reduction Act feasibility studies, business plans, a greater extent than large entity marketing plans, success stories, best applicants. The collection of information practices). requirements contained in this interim Executive Order 12372, The estimated information collection rule have been submitted to the Office burden hours has increased from the Intergovernmental Review of Federal of Management and Budget (OMB) for Programs proposed rule by 1,239 hours from clearance. In accordance with the 67,943 to 69,235 for the interim rule. This program is subject to Executive Paperwork Reduction Act of 1995, the The increase is attributable to reporting Order 12372, which requires Agency will seek standard OMB requirements that were inadvertently intergovernmental consultation with approval of the reporting requirements omitted from the proposed rule. State and local officials. contained in this interim rule. In the publication of the proposed rule on May Estimate of Burden: Public reporting Intergovernmental consultation will burden for this collection of information occur for the assistance to producers of 28, 2010, the Agency solicited comments on the estimated burden. The is estimated to average 11 hours per agricultural commodities in accordance response. with the process and procedures Agency received one public comment in Respondents: Producers of outlined in 7 CFR part 3015, subpart V. response to this solicitation. This agricultural commodities. Rural Development will conduct information collection requirement will intergovernmental consultation using not become effective until approved by Estimated Number of Respondents: RD Instruction 1940–J, OMB. Upon approval of this 600. ‘‘Intergovernmental Review of Rural information collection, the Agency will Estimated Number of Responses per Development Programs and Activities,’’ publish a rule in the Federal Register. Respondent: 10. available in any Rural Development Title: Value-Added Producer Grant Estimated Number of Responses: office, on the Internet at http:// Program. 6,239. www.rurdev.usda.gov/regs, and in 7 OMB Number: 0570–XXXX. Estimated Total Annual Burden on CFR part 3015, subpart V. Note that not Type of Request: New collection. Respondents: 69,235.

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E-Government Act Compliance acquiring, or constructing a building or otherwise indicated, rule citations refer The Agency is committed to facility (including a processing facility). to those in the interim rule. They also cannot be used to purchase, complying with the E-Government Act A. Definitions of 2002 (Pub. L. 107–347, December 17, rent, or install fixed equipment. This program requires matching funds Numerous changes were made to the 2002) to promote the use of the Internet definitions, including revising, adding, and other information technologies to equal to or greater than the amount of grant funds requested. The Act provides and deleting definitions. provide increased opportunities for 1. Revised definitions. Definitions citizen access to government for both mandatory and discretionary funding for the program, as may be that were revised included: information and services, and for other • Agricultural commodity. appropriated. Further, the program purposes. Incorporated the concept of agricultural includes two reserved funds each of I. Background product. which will include ten percent of • Agricultural producer. Expanded This interim rule contains the program funds each year to support the definition to incorporate concept of provisions and procedures by which the applications that support projects that having legal right to harvest an Agency will administer the Value- benefit beginning and socially agricultural commodity and how the Added Producer Grant (VAPG) Program. disadvantaged farmers and ranchers and term ‘‘directly engage’’ may be satisfied. The primary objective of this grant that develop mid-tier value marketing • Agricultural producer group. Added program is to help Independent chains. that independent producers, on whose Producers of Agricultural Commodities, The number of grants awarded will behalf the value-added work will be Agriculture Producer Groups, Farmer vary from year to year, based on done, must be confirmed as eligible and and Rancher Cooperatives, and availability of funds and the quality of identified by name or class. Majority-Controlled Producer-Based applications. The maximum grant • Conflict of interest. Significant Business Ventures develop strategies to amount that may be awarded is changes were made to ensure clarity create marketing opportunities and to $500,000. However, the Agency may between conflict of interest, in-kind help develop Business Plans for viable reduce that amount depending on the contributions, and matching funds. marketing opportunities regarding total funds appropriated for the program • Emerging market. Added the production of bio-based products from in a given fiscal year. This policy allows concept of ‘‘geographic market’’ and a agricultural commodities. As with all more grants to be awarded under two-year limitation. value-added efforts, generating new reduced funding. • Farmer or rancher cooperative. products, creating expanded marketing The Agency notes, pursuant to general Revised ‘‘independent agricultural opportunities, and increasing producer Federal directives providing guidance producers’’ to read ‘‘independent income are the end goal. on grant usage, that the matching funds producers’’ and added that independent Eligible applicants are independent requirement described in the producers must be confirmed as eligible Agricultural Risk Protection Act of 2000 and identified by name or class. agricultural producers, farmer and • rancher cooperatives, agricultural may include a limited and specified in- Independent producers. Revised producer groups, and majority- kind contribution amount for the value steering committee requirements and controlled producer-based business of the time of the applicant/producer or added harvesters as a new paragraph (3) to the definition. ventures. the applicant/producer’s family • Rural Development is soliciting members only for their involvement in Local or regional supply network. ‘‘ ’’ comments regarding the participation of the development of the business and Added aggregators to list of example tribal entities including tribal marketing plans associated with a entities that may participate in a supply network and added reference to governments in the VAPG Program. planning grant project. Please see ‘‘provide facilitation of services.’’ Specifically, we are seeking comment § 4284.902 definitions for Conflict of • Majority-controlled producer-based Interest, and Matching Funds; and on ways to improve the ability of tribal business venture. Added that § 4284.923(a) for applicant in-kind entities participation in the VAPG Independent Producer members must be implementation protocol. Program and ways to overcome existing confirmed as eligible and must be barriers to tribal entities’ participation Interim Rule. The Agency is issuing identified by name or class, along with in the VAPG Program. this regulation as an interim rule, with their percentage of ownership. The program includes priorities for an effective date of March 25, 2011. All • Matching funds. Significant projects that contribute to opportunities provisions of this regulation are adopted changes were made to ensure clarity for beginning farmers or ranchers, on an interim final basis, are subject to between matching funds, in-kind socially disadvantaged farmers or a 60-day comment period, and will contributions, and conflict of interest. ranchers, and operators of small- and remain in effect until the Agency adopts • Medium-sized farm. Increased the medium-sized family farms and ranches final rules. The provisions of this upper limit defining a medium-sized that are structured as Family Farms. subpart constitute the entire provisions farm to $1 million. Applications from these priority groups applicable to this Program; the • Product segregation. Removed will receive additional points in the provisions of subpart A of this title do reference to ‘‘product’’ because of the scoring of applications. In the case of not apply to this subpart. change in the definition for agricultural equally ranked proposals, preference II. Summary of Changes to the commodity. will be given to applications that more • Proposed Rule Pro forma financial statement. significantly contribute to opportunities Added a minimum three year for beginning farmers and ranchers, This section presents changes from requirement for the projections included socially disadvantaged farmers and the May 28, 2010, proposed rule. Most in the statement. ranchers, and operators of small- and of the changes were the result of the • Project. Added ‘‘eligible’’ so that the medium-sized farms and ranches that Agency’s consideration of public definition now refers to ‘‘eligible are structured as Family Farms. comments on the proposed rule. Some activities.’’ Grant funds cannot be used for changes, however, are being made to • Qualified consultant. Added the planning, repairing, rehabilitating, clarify proposed provisions. Unless concept of no conflict of interest.

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• Value-added agricultural product. • Adding a requirement to evidence apparent conflict of interest, except as Removed reference to ‘‘product’’ because good standing as part of legal authority specifically noted for limited in-kind of the change in the definition for and responsibility (§ 4284.920(d)). matching funds in § 4284.923(a) and (b). agricultural commodity and reinstated • Clarifying that ‘‘within 90 days’’ for • Adding a new paragraph text from the authorizing statute. closing out the currently active grant is prohibiting paying for costs for • Venture. Added ‘‘and its value- based on the application submission scenarios with noncompetitive trade added undertakings’’ to the definition. deadline (§ 4284.920(f)). practices. • Adding ‘‘for the processing and 2. Added definitions. The following D. Project Eligibility definitions were added: marketing of the value-added product’’ • Agricultural food product. This Numerous changes were made to the paragraph prohibiting paying throughout this section, including: expenses not directly related to the term was added to help clarify what • constitutes a ‘‘Locally-produced Clarifying the conflict of interest funded project. provision in § 4284.922(b)(2). • Adding ‘‘as identified by name or agricultural food product.’’ • • Applicant. This term was added to Adding exception to the class’’ to the paragraph prohibiting emphasize applicant eligibility requirement for submitting a feasibility paying for conducting activities on requirements. study for applicants who can behalf of anyone other than a • Branding. This term was added to demonstrate that they are proposing specifically identified independent clarify the implementation of the market expansion for existing value- producer or group of independent program with regard to branding added products (see § 4284.922(b)(5)(i)). producers. • Adding an exception to the • activities. Adding a new paragraph requirement for submitting a feasibility • Change in physical state. This term prohibiting paying owner or immediate study and a business plan for working is used in the Value-Added Agricultural family member salaries or wages. capital applicants requesting $50,000 or • Product definition and is being defined Adding a new paragraph less and submitting simplified to increase understanding and Agency prohibiting paying for goods or services applications (see § 4284.922(b)(5)(ii)). intention for this category and to from a person or entity that employs the • Added reference to an emerging mitigate problems that have presented owner or an immediate family member; market ‘‘unserved by the applicant in • during the history of the program. Deleting proposed § 4284.924(p). • the two previous years’’ to conform to Produced in a manner that change made in the definition of G. Preliminary Review enhances the value of the agricultural emerging market (see § 4284.922(b)(6)). The Agency added text to reference commodity. This term is used in the • Removing proposed paragraph applicant eligibility as part of the Value-Added Agricultural Product § 4284.922(c), which results in removing preliminary review conducted by the definition and is being defined to the proposed limitations on branding Agency. increase understanding and activities. implementation for this important • Revising reserved funds eligibility H. Application Package product eligibility category in order to significantly to identify the type of Substantive changes to this section mitigate product eligibility problems documentation being requested (see include: and interpretations that have presented § 4284.922(c)(1)(i) and (ii), • Deleting the requirement to submit during the history of the program. § 4284.922(c)(2)(i) and (ii), and Form RD 400–1, Equal Opportunity 3. Deleted definitions. The following § 4284.922(c)(2)(iv)(A) and (B)). Agreement. definitions were deleted: • Adding a new paragraph (d) • Adding the requirement to submit • Agricultural product. The term is addressing requirements for applicants Form RD 1940–20. now incorporated into the definition of seeking priority points if they propose • Adding that the performance agricultural product. projects that contribute to increasing criteria in the applicant’s semi-annual • Anticipate award date. The term is opportunities for beginning farmers or and final reporting requirements can be not used in the rule. ranchers, socially disadvantaged farmer requested by either the applicant or the • Day. Unnecessary to define. or ranchers, or operators of small- and Agency and will be detailed in either • Rural or rural area. With the medium-sized farms and ranches that the grant agreement or the letter of removal of the scoring criterion for are structured as a family farm. conditions. being located in a rural or rural area, the • Adding that the applicant must term is not used in the rule. E. Eligible Uses of Grant Funds demonstrate the eligibility and availability of both cash and in-kind B. Environmental Requirements The Agency revised this section by including provisions to clearly allow the contributions (not just provide authentic The Agency corrected this section by use of in-kind contributions and documentation from the source as was replacing the reference to Form 1940– limiting in-kind contributions to 25 proposed). 22, ‘‘Environmental Checklist for percent of total project costs. • Adding as acceptable matching Categorical Exclusions,’’ with ‘‘Form RD funds a confirmed applicant or family 1940–20, Request for Environmental F. Ineligible Uses of Grants and member in-kind contribution that meets Information.’’ Matching Funds the requirements and limitations In addition to adding new C. Applicant Eligibility specified in § 4284.923(a) and (b) and introductory text to this section to non-federal grant sources (unless In addition to edits to clarify this address conflict of interest and to clarify otherwise provided by law). section, changes included: that use of funds is limited to only the • Providing additional examples of • Replacing ‘‘demonstrate’’ with eligible activities identified in ineligible matching funds. ‘‘certify’’ in § 4280.920(c)(1) and (c)(2). § 4284.923, changes made include: • Providing exceptions as to when a • Replacing reference to ‘‘immediate • Adding a new paragraph business plan and a feasibility study are family members’’ with ‘‘entity owners’’ prohibiting paying for support costs for required. in § 4284.920(c)(2) to clarify the services or goods going to or coming • Changing the language in the provision. from a person or entity with a real or product eligibility category ‘‘produced

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in a manner that enhances the value of reports from 30 to 45 days following rule. Eligibility requirements depend the agricultural commodity,’’ to allow March 31 and September 30 (see upon and refer to the definitions, so the for the inclusion of planning grant § 4284.960(b)(1)). definitions must be comprehensive. applications in this category. • Adding distribution network supply Response: The Agency agrees with the as an example of supporting commenter and has revised definitions I. Filing Instructions documentation under § 4284.960(b)(3). and provided additional definitions, as Changes to this section include: • Adding examples of the types of described in the following paragraphs. • Replacing the fixed application project and performance data that the deadline of March 15 each fiscal year Agency may request under Agricultural Commodity with identification in an annual Federal § 4284.960(b)(4). Comment: One commenter states that Register notice of the application • Adding a new paragraph there is no need to distinguish between deadline, which will allow at least 60 (§ 4284.960(b)(5)) identifying conditions ‘‘Agricultural Product’’ and ‘‘Agricultural days for applicants to submit their under which the Agency may terminate Commodity,’’ and recommends applications. or suspend the grant. combining the definitions to read as • Adding text to indicate that follows: applications must contain all required N. Transfer of Obligations Agricultural commodity. An components in their entirety. The Agency made two revisions to unprocessed product of farms, ranches, • Adding text to indicate that emailed this section as follows: nurseries, forests, and natural and man- or faxed applications will not be • Adding to the introductory text that made bodies of water, that the accepted. the transfer of obligation of funds is at independent producer has cultivated, the discretion of the Agency and will be J. Processing Applications raised, or harvested with legal access made on a case-by-case basis. rights. Agricultural commodities • The Agency revised § 4284.940(b) by Revising § 4284.962(b) to condition include plant and animal products and limiting the Agency notifications under the approval of a transfer of obligation their by-products, such as crops, to applicants whose applications are of funds on the project continuing to forestry products, hydroponics, nursery found to be ineligible. meet ‘‘all product, purpose, and reserved stock, aquaculture, meat, on-farm funds eligibility requirements.’’ K. Proposal Evaluation Criteria and generated manure, and fish and seafood Scoring O. Grant Servicing products. Agricultural commodities do not include horses or other animals Several changes were made to this The Agency has revised this section to raised or sold as pets, such as cats, dogs, section including: allow for an extension process that • Adding text to indicate that and ferrets. would not require the approval of the Response: The Agency agrees with the applications whose scoring information Administrator. Originally, the change commenter and has revised the rule is not readily identifiable will not be was going to be made to 7 CFR part 1951 accordingly. considered. subpart E, however, the Agency decided • Increasing the points to be awarded that the information was a better fit Agricultural Food Product for the nature of the proposed project under § 4284.961. Comment: One commenter states that from 25 to 30. the definition for ‘‘Locally-produced • Decreasing the points to be awarded P. Grant Close Out and Related agricultural food product’’ does not for the type of applicant from 15 to 10. Activities • Including points (10) to be awarded describe what an agricultural food The Agency has revised this section to product can and cannot be; it only if the applicant is a cooperative. identify these activities more explicitly. • Deleting the rural or rural area describes the distance and geographic location criterion. III. Summary of Comments and requirements for local foods. Thus, a Responses definition consistent with the definition L. Obligate and Award Funds (Grant found in the Rural Business-Cooperative Agreement at Proposal) Purpose—(§ 4284.901) Service Business and Industry program Two major revisions were made to Comment: One commenter is needed. The commenter recommends this section as follows: recommends that ‘‘viable agricultural the following definition: • Adding a new paragraph (c) producers’’ be added to this language to Agricultural food product. Agricul- detailing additional documentation that clarify that the limited grant funds tural food products can be a raw, a grantee will need to execute in order available in this discretionary funding cooked, or processed edible substance, for the Agency to obligate the award of program are intended to assist viable beverage, or ingredient intended for funds. agricultural businesses that are human consumption. These products • Adding details for the submittal of financially prepared to progress to the cannot be animal feed, live animals, disbursement requests by the grantee next business level of planning for, or non-harvested plants, fiber, medicinal (§ 4284.951(d)). engaging in, value-added production. products, cosmetics, tobacco products, Response: The Agency agrees with the or narcotics. M. Monitoring and Reporting Program commenter and has revised the rule Response: The Agency agrees with the Performance accordingly. commenter and has revised the rule The Agency made several changes to accordingly. Definitions—(§ 4284.902) this section, as follows: • Adding text to § 4284.960(a) to Comment: One commenter states that, Agricultural Producer indicate that grantees must complete the in addition to the need for several new Comment: One commenter project per the terms and conditions definitions related to program concepts, recommends revising this definition to specified in the approved work plan and many of the current definitions in the address ‘‘harvesters’’ as eligible budget, and in the grant agreement and proposed rule need revision for agricultural producers, and to clarify letter of conditions. clarification and to ensure that the past program conflicts of what it means • Revising the time allowed for eligibility requirements dependent upon to ‘‘directly engage’’ in production to submitting semi-annual performance these definitions are included in the strengthen the definition. The

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commenter recommends the following definition by allowing identification by is going to be stipulated in the rule, it definition: name or class. Because the regulation is important that the rule is correct and Agricultural producer. An individual refers to the definitions for instruction clear as it is difficult and time or entity directly engaged in the on applicant eligibility, all eligibility consuming to change a final rule. In the production of an agricultural requirements must be stated in the case of individual farmer/rancher commodity, or that has the legal right to definition. grants, there is no problem. The harvest an agricultural commodity, that Response: The Agency agrees with the individual farmer or rancher is either a is the subject of the value-added project. commenter and has revised the rule beginner or not. However, group Agricultural producers may ‘‘directly accordingly. proposals are an entirely different engage’’ either through substantially matter. participating in the labor, management, Agricultural Product The proposed rule’s beginning farmer and field operations themselves; or by Comment: One commenter states that definition dictates that all members of maintaining ownership and financial this definition is not needed and should the farmer group, co-op, business, or control of the agricultural operation. be deleted. The commenter recommends other entity must be beginning farmers Response: The Agency agrees with the combining this language with the or ranchers, an extremely unlikely commenter and has revised the rule ‘‘Agricultural Commodity’’ definition. situation in the real world. The accordingly. Response: The Agency agrees with the commenter believes the proposed rule commenter and has revised the rule negates the express will of Congress in Agricultural Producer Group accordingly. creating the priority and reserved fund Comment: One commenter Beginning Farmer or Rancher in the first place by creating a recommends softening, for Mid-Tier stipulation that renders the directive Value Chain (MTVC) projects only, the Comment: One commenter states that effectively null and void. Even if a 100 definition of an Agricultural Producer the final rule should facilitate percent beginning farmer member co-op Group (APG). Expand the APG applications from projects benefiting or business or farm group existed definition to include nonprofits that beginning farmers and ranchers. somewhere in the real world, requiring have a mission to help promote farmer Supporting these projects is a statutory a new farm business made up of income through MTVC strategies, and priority for the VAPG program. The multiple farmers to be 100 percent reduce any requirement that the statute also provides for a 10 percent beginners will preclude mentoring nonprofit be controlled by farmers. It is reserved fund set-aside for projects that opportunities with more experienced not necessary for a nonprofit with a benefit beginning farmers or ranchers or farmers and increase risk of failure. MTVC to be controlled by farmers for it socially disadvantaged farmers or Hence, it would tend to defeat the to be genuinely representative and ranchers. The specific wording of these purpose of the program. There are two committed to farmers and the MTVC. two statutory provisions is very operative provisions in the proposed Such nonprofits are frequently the most important. rule related to beginning farmers and likely to play a pivotal role in convening The Agency is to give priority to ranchers. The first is in reference to the and organizing a complex web of projects that contribute to farming reserved funds (proposed entities along the value chain, and they opportunities for beginning farmers and § 4284.922(d)(1)) and states: ‘‘If the should not be included as an eligible is to reserve funds for projects that applicant is applying for beginning MTVC–APG. benefit beginning farmers. Nowhere farmer or rancher, or socially- Response: The Agency does not agree does the statute say that such priority disadvantaged farmer or rancher that it is necessary to change the projects must exclusively benefit reserved funds, the applicant must definition of Agricultural Producer beginning farmers and no one else. By provide documentation demonstrating Group to allow for the participation of statute, it is sufficient that the priority that the applicant meets one of these other entities. The Agency recognizes projects contribute to new farming definitions.’’ that nonprofit entities may provide opportunities and benefit beginning The second is a very indirect valuable assistance within the supply farmers. In implementing the intent of reference in the evaluation criteria and chain and has added ‘‘nonprofit Congress, the Agency needs to provide scoring of applications section, where organizations’’ to the Reserved Fund guidance in regulations and/or in up to 15 points are awarded for ‘‘Type Eligibility Requirements for MTVC. guidance to grant reviewers as to what of applicant.’’ In the final analysis, Comment: One commenter suggests constitutes a significant enough therefore, everything in the rule hinges the following revised definition: contribution or benefit to beginning on the definition of beginning farmer or Agricultural producer group. A farmers as to qualify a proposal as rancher in the definition section of the membership organization that meeting the program priority or access rule. represents independent producers and to the reserved fund. The commenter contends that this whose mission includes working on Stipulating the criteria in the rule has language indicates that proposals from behalf of independent producers and the negative effect of locking the criteria individual beginning farmers or the majority of whose membership and in place for all the years the rule ranchers as well as applications from an board of directors is comprised of remains in place. The alternative— agricultural producer group, co-op, and independent producers. The dealing with the issue in the annual business must include exclusively independent producers, on whose NOFA and/or grant review criteria—has beginning farmers or ranchers to qualify behalf the value-added work will be the benefit of allowing for an iterative for the beginning farmer or rancher done, must be confirmed as eligible and process to refine and fine tune the category. As it applies to group identified by name or class. criteria based on actual experience. proposals, this definition flies in the The commenter states that the added The commenter prefers providing for face of the statutory language that language instructs on the eligibility iterative annual adjustments as needed projects simply contribute to beginning requirement that, for agricultural to ensure the intent of Congress in farmer opportunities and benefit producer group, the Independent creating the beginning farmer priority is beginning farmers. Producers must be identified. The actually achieved in the reality of The commenter states there are two commenter prefers to expand the program implementation. If, however, it remedies. One would be to change the

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definition. The other would be to leave agricultural product to which value will The commenter states that, if the term the definition as is, but add an operative be added. Nonproduction of product, cannot be eliminated, further provision elsewhere in the rule to even for a beginning farmer or rancher, clarification of the definition is ensure the rule complies with the law would not be an eligible application. required. All exceptions to the rule must and common sense. The suggested revised definition is as be clearly stated. As it stands now, If the first alternative is chosen, the follows: applicant time contributed to the commenter recommends the definition Beginning farmer or rancher. This completion of a business and/or of beginning farmer and rancher be term has the meaning given it in section marketing plan is allowable (See amended as follows: ‘‘Beginning farmer 343(a) of the Consolidated Farm and § 4284.923, 75 FR 29929), but there is or rancher. This term has the meaning Rural Development Act (7 U.S.C. much confusion as to whether this given it in section 343(a) of the 1991(a)) and is an entity in which none would constitute a conflict of interest. Consolidated Farm and Rural of the individual owners have operated The suggestion is to state more Development Act (7 U.S.C. 1991(a)) and a farm or a ranch for more than 10 years. emphatically the ability of applicants to is an entity in which none of the For the purposes of this subpart, a contribute time towards a business individual owners have operated a farm beginning farmer or rancher must be an and/or marketing plan without or a ranch for more than 10 years. In the Independent Producer that, at time of incurring a conflict of interest. event that there are multiple farmer or application submission, currently owns The commenter further states that, for rancher owners of the applicant group, and produces more than 50 percent of Working Capital applications, grant at least 25 percent of the ownership the agricultural commodity to which funds cannot pay the salaries of must be held by beginning farmers or value will be added. employees with an ownership interest ranchers. For the purposes of this Response: The Agency disagrees with to process and/or market and deliver the subpart, a beginning farmer or rancher the suggested revision. A change in value-added product to consumers (as must currently own and produce the definition is not required to accomplish stated in proposed § 4284.923(b)) and agricultural commodity to which value this goal. All program applicants must asks why one payment is allowed and ’’ the other is not? Does this relate to will be added. meet the criteria of one of the four Another commenter states the rule conflict of interest? Clarification would applicant eligibility categories. The must not create barriers for beginning aid in reader interpretation. beginning farmer or rancher definition farmers and ranchers that are part of a Response: The Agency agrees that producer group or entity seeking to is statutory. guidance and clarification regarding establish a value added market. The Change in Physical State Conflict of Interest is necessary. proposed rule suggests that BFR entities The Agency considers the use of grant must have a 100 percent of the Comment: One commenter funds for direct personal financial gain membership meeting the beginning recommends adding a definition for to be a conflict of interest and will ‘‘ ’’ farmer definition to qualify for the set- change in physical state. This continue to prohibit use of grant funds aside funds and priority status. This is terminology is used in the Value-Added to pay applicant/applicant family difficult at best and most operations agricultural product definition and member salaries. However, the Agency they have worked with do not include should be defined to increase recognizes the value of producer 100 percent beginning farmers. This understanding and Agency intention for participation in planning activities, as requirement must be changed to be less this category and to mitigate problems well as the necessity of participating in restrictive or they will lose the that have presented during the history eligible marketing activities. Therefore, opportunity to enable beginning farmers of the program (pressure-ripened both Planning and Working Capital to enter existing operations and be peaches, dehydrated corn: part of applicants (and applicant family provided mentoring and new market previous applications that were deemed members, as necessary) may contribute opportunities. The commenter believes ineligible by the program due to time spent on eligible activities as in- a 25 percent ownership/membership ineligible change in physical state). kind match amounting to up to 25 test would be appropriate. Response: The Agency agrees with the percent of total project cost, provided Response: The Agency disagrees with recommendation and has added a that a realistic and relevant valuation of the commenters. The definition of definition for this term. their time can be documented, as beginning farmer or rancher is Conflict of Interest provided for at § 4284.923. stipulated by statute, which also Comment: Numerous commenters stipulates that projects must ‘benefit’ Comment: One commenter states that urge the Agency to reconsider the beginning farmers or ranchers. It is the the conflict of interest definition should definition for conflict of interest to position of the Agency that Reserved be eliminated as it is confusing and include an exception to allow funds are to benefit this priority inconsistent in application. First, the applicants to contribute time (e.g. in- category exclusively. The statute very receipt of a grant directly benefits kind match) towards the development of indicates that priority points are to be the producer applicant(s) and could be business and/or marketing plans. The awarded to projects that ‘‘provide considered a conflict. Secondly, what is commenters believe it is in the opportunities’’ to beginning farmers or the rationale for allowance of some applicant’s best interest to be intimately ranchers. It is the position of the Agency activities by the producer applicant(s) involved in this part of the process. that priority points may be awarded to while others are classified as having a Furthermore, for small, beginning entities or groups in which Beginning conflict of interest? Application of the farmers or ranchers, and/or Farmers or Ranchers comprise at least rule appears to be somewhat arbitrary in disadvantaged farmers or ranchers 51 percent membership. its current form. especially, allowable in-kind match of Comment: One commenter suggests The commenter also notes that this this nature is of critical importance revising this definition and adding definition is confusing and misleading because the project is still at the language clarifying that the beginning because applicant in-kind for the planning stage and revenues from the farmer or rancher must first be an development of business plans and/or project have yet to be realized. As such, eligible independent producer that is marketing plans is ruled to be an the applicant’s ability to match the grant currently producing the majority of the eligible match. with 100 percent cash is often limited.

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Numerous commenters recommend should preclude producers from being The commenter recommends keeping business and enterprise integral to the research and information eliminating the inclusion of the example planning of VAPG projects farmer- collection necessary for a successful within the conflict of interest definition. centered. Farmers and ranchers should feasibility study. The economic realities The very nature of this program serving directly participate in the development of the farmer and rancher communities farmers and ranchers should indicate of VAPG projects and be allowed to the VAPG program was created to help that their involvement would not be count their time as a contribution ameliorate require that the program considered a ‘‘conflict of interest’’. The toward the program’s matching allow producers’ time and expenses be grant is for their purposes and their requirements. permitted as an allowable match for involvement is critical to the success of Several commenters state that, as grant funds. the project. Therefore, the rule must agricultural producers and past The businesses most likely to succeed clear up this confusion and can begin by recipients of VAPGs to conduct are those in which producers are most eliminating the example provided planning and feasibility studies, they actively engaged in the enterprise’s within the definition of conflict of believe strongly in this program and planning. Their involvement should be interest. have received first-hand benefits. As a encouraged and counted as an equally The rule must also clear up all the beginning farmer, the ability to important contribution as cash to the inconsistencies where they appear contribute in-kind match towards the project. The inclusion of the example in regarding conflict of interest, producer completion of planning grant was the second sentence of the proposed involvement and direction indicating crucial in making the project affordable. rule’s definition of conflict of interest, certain aspects must be through a third- Moreover, being personally involved in when applied to sections of the rule that party consultant. the completion of the business and refer back to the conflict of interest Response: The Agency agrees and the marketing plan was critically important definition, contradicts the statute at 7 example has been removed from the as the owners of the new value-added U.S.C. 1621(b)(1)(A) and (b)(3)(A) as conflict of interest definition. In businesses and the persons who would well as the allowance made in proposed addition, the Agency has added bear primary responsibility for § 4284.923(a) and must be fixed to language at § 4284.923(a) and (b) that implementing these plans. provide consistency and clarity. The clarifies that applicants (and applicant family members, as necessary) may One commenter states that concern commenter, therefore, recommends that over conflicts of interest began to participate in the non-evaluative the example be eliminated from the emerge in VAPG NOFAs several years portions of Planning grants and may definition as follows: ago and has now led to an overly contribute time as in-kind match ‘‘A situation in which a person or restrictive definition. Specifically, the amounting to up to 25 percent of total entity has competing professional or example provided in the definition of project cost, provided that a realistic conflict of interest implies that farmers personal interests that make it difficult and relevant valuation of their time can and ranchers have an inherent bias in for the person or business to act be documented. ’’ favor of their project ideas that trumps impartially. Comment: One commenter an equally compelling interest in not Response: The Agency agrees that the recommends revising this definition and investing their resources in an idea that definition and application of ‘‘Conflict [deleting the line ‘‘An example is a grant will not work. The commenter states of Interest’’ needs clarification. The recipient or an employee of a recipient that its members’ experience, in Agency also recognizes the value of that conducts or significantly contrast, shows that successful producer participation in Planning participates in conducting a feasibility businesses are those in which activities, while, at the same time study for the recipient.’’ participating farmers and ranchers are acknowledging that an unbiased, third According to the commenter, conflict intimately engaged in all of the planning party is necessary for the evaluative of interest has been a major problem in stages. portions of these activities. Therefore, the program for years, and is largely Given the example included as part of the Agency will retain its requirement responsible for the high volume of the definition, the continued references that feasibility studies be performed by ineligible applications received to conflict of interest in the proposed independent third-parties. However, annually. The conflict of interest rule give the clear impression that applicants (and applicant family definition and its implementation participation by the producer, their members, as necessary) are encouraged parameters need to be very clear in the family members, and/or staff creates to participate in the non-evaluative regulation. The commenter suggested huge problems and is prohibited. This portions of Planning grants and may that the definition of ‘‘conflict of undermines the fundamental principle contribute time as in-kind match interest’’ read as follows: of the VAPG program: that farmers and amounting to up to 25 percent of total ‘‘A situation in which a person or ranchers should be empowered through project cost, provided that a realistic entity has competing personal, these grants to explore creative new and relevant valuation of their time can professional or financial interests that businesses that will increase farm be documented, as described at make it difficult for the person or income and create or expand rural § 4284.923. business to act impartially. Regarding wealth. This broad definition of conflict Comment: One commenter use of both grant and matching funds, of interest could easily lead to an recommends clearing up the confusion Federal procurement standards prohibit interpretation that would prohibit surrounding ‘‘conflict of interest.’’ The transactions that involve a real or farmer or rancher participation in any of proposed rule makes strides in apparent conflict of interest for owners, the work necessary for planning grants addressing producer participation, employees, officers, agents, or their and result in VAPG evolving into a grant however, it is confusing at best as to immediate family members having a program that benefits consultants rather many areas regarding producer financial or other interest in the than producers. involvement. The most troublesome outcome of the project; or that restrict The commenter agrees that feasibility involves ‘‘conflict of interest’’ as it open and free competition for studies generally should be written by appears in several places throughout the unrestrained trade. Examples of third party professionals, but disagrees rule and often times directly contradicts conflicts of interest include, but are not that a conflict of interest exists that other areas of the rule. limited to, organizational conflicts,

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noncompetitive practices, and support Agricultural Product refers to ‘‘farm or Feasibility study: An analysis of the of costs for goods or services provided ranch based renewable energy,’’ but does economic, market, technical, financial, by a person or entity with a conflict of not offer a definition. The following and management capabilities of a interest. Specifically, grant and definition clarifies what is eligible and proposed project or business in terms of matching funds may not be used to ineligible renewable energy in this the project’s expectation for success. support costs for services or goods going program. Although, given the new Applicants may use a qualified to, or coming from, a person or entity definition for agricultural commodity, consultant to perform the feasibility with a real or apparent conflict of (bodies of water), the commenter now study, in which case applicants and interest, including, but not limited to, questions whether hydro energy would family members of applicants may owner(s) and their immediate family be an eligible renewable energy product. participate in collecting data and members. See § 4284.923(a) for one Farm- or Ranch-based Renewable providing input required by the limited exception to this definition and Energy. An agricultural commodity that qualified consultant in the development practice for VAPG.’’ is used to generate renewable energy on of a feasibility study and may either According to the commenter, the a farm or ranch owned or leased by the receive payment for their time or may suggested definition is consistent with independent producer applicant that count their time as an in-kind Federal procurement standards that produces the agricultural commodity. contribution of matching funds to the apply to VAPG, including 7 CFR part On-farm generation of energy from extent that the value of such work can 3019 and 2 CFR part 230. An exception wind, solar, geothermal, or hydro be appropriately valued. to the rule for limited applicant in-kind sources are not eligible. Response: The Agency disagrees with on BP and MP tasks is detailed in Response: The Agency agrees with the the commenter. The Agency’s definition proposed § 4284.923(a), but the commenter and has added a definition of Feasibility Study does not contradict exception is not the rule, and conflict of to the rule. the statute at 7 U.S.C. 1621(b)(3)(A) or interest should be clearly defined in the the eligible uses of grant and matching regulation. Farmer or Ranch Cooperative funds in § 4284.923(a). Comment: One commenter states that, Response: The Agency agrees and the Comment: One commenter in the past, the qualified consultant has definition has been revised for clarity, to recommends the following revised been an independent, third party remove the example, and to reference definition: § 4284.923(a) and (b), which contain without a conflict of interest. If that is Farmer or rancher cooperative. A still the intent, it would be helpful if two limited exceptions to its business owned and controlled by implementation. that was listed in the definition. independent producers that is Response: The Agency agrees with the Day incorporated, or otherwise identified by commenter and the definition of the state in which it operates as a Comment: One commenter asks why Qualified Consultant has been revised to cooperatively operated business. The add reference to ‘‘without a conflict of day needs to be defined. independent producers, on whose Response: The Agency agrees with the interest.’’ behalf the value-added work will be commenter and has revised the rule done, must be confirmed as eligible and Independent Producers accordingly. identified by name or class. Comment: One commenter states that Emerging Market The commenter stated that the added requiring the producer retain ownership Comment: One commenter language instructs on the eligibility through the entire value-added process recommends the following revised requirements that include: (1) The is often legally difficult to accomplish definition: cooperative must be comprised of and may be undesirable for a number of Emerging market. A new or Independent producers (and not simply reasons, such as the creation of legal developing product, geographic, or agricultural producers), a definition liability during transportation, demographic market that is new to the wherein lies primary applicant processing, etc. An agricultural applicant or the applicant’s product. To eligibility requirements for all four producer should be free to part with qualify as new, the applicant cannot applicant types; and (2) the independent ownership of the commodity at any have supplied this product, geographic producers on whose behalf the work stage during the value-chain provided or demographic market for more than will be done must be identified. Because the end result is an increase in profits two years at time of application the regulation refers to the definitions and market share. The logic of this is submission. for instruction on applicant eligibility recognized in an allowance of this kind The commenter states that the added requirements, all eligibility of flexibility with handling MTVC clarification for ‘‘new’’ is necessary so requirements must be stated in the proposals. It should also be offered for that its interpretation is universal and it definitions. regular VAPG projects as well. If an is not left open to subjectivity. The Response: The Agency agrees with the eligible VAPG applicant can show their emerging market criterion only applies commenter and has revised the rule profits will be increased from a project, to agricultural producer groups, accordingly. the stage at which ownership transfers should be irrelevant. cooperatives, and majority controlled Feasibility Study producer-based business venture type Response: The Agency disagrees with applicants as part of Project Purpose Comment: One commenter states that extending the ownership exception as eligibility requirements. the rule’s definition of ‘‘feasibility suggested. The mid-tier value chain Response: The Agency agrees with the study’’ contradicts the statute at 7 U.S.C. exception is relevant because of the commenter and has revised the rule 1621(b)(3)(A) and would also contradict required alliances and agreements that accordingly. the proposed rule in § 4284.923(a), if provide for mutually-beneficial modified as the commenter suggests. distribution of revenue based on the Farm- or Ranch-based Renewable The commenter recommends the agreed upon end-product and market. Energy following conforming language be Agricultural producers applying Comment: One commenter states that added to that definition to provide without the benefit of this structure do the definition for Value-Added consistency and clarity: not necessarily gain these benefits

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where title changes hands before value Response: The Agency agrees and has (2) The State in which the product is is added and gains from that added- revised the rule as suggested by the produced. value realized. commenter with the following The commenter states that this Comment: One commenter exceptions. The revision of the Steering definition includes a reference to recommends the following revised Committee portion should not restrict Agricultural Food Product, which they definition: the Agency from granting prior believe needs a definition of its own. Independent producers. approvals to changes in ownership Response: The Agency agrees with the (1) Individual agricultural producers structure which conform to eligibility or entities that are solely owned and commenter and has revised the rule requirements. Paragraph 2 has been accordingly. controlled by agricultural producers. revised as follows: Independent producers must produce (2) A steering committee comprised of Majority-Controlled Producer-Based and own the majority of the agricultural specifically identified agricultural Business Venture commodity to which value will be producers in the process of organizing added as the subject of the project one of the four program eligible entity Comment: One commenter proposal. Independent producers must types that will operate a value-added recommends revising this term by maintain ownership of the agricultural venture and will supply the majority of deleting ‘‘venture’’, because the commodity from its raw state through the agricultural commodity for the applicant must be a legal business entity the production and marketing of the value-added project during the grant and not a venture: Majority-controlled value-added product. Producers who period. producer-based business. produce the agricultural commodity The Agency disagrees with the Response: The Agency disagrees with under contract for another entity, but do wording proposed regarding the commenter and has retained the not own the agricultural commodity or Agricultural Harvesters. All applicants term as proposed because the ability to value-added product produced, are not must meet the definition of Agricultural refer to activities beyond those specific considered independent producers. Producer, which is inclusive of to the grant allows for more precise Entities that contract out the production Agricultural Harvesters. A paragraph communication. of an agricultural commodity are not addressing harvesters has been added to Marketing Plan considered independent producers. read as follows: (2) A steering committee comprised (3) A harvester of an agricultural Comment: One commenter states that only of specifically identified commodity that can document their the statute at 7 U.S.C. 1621(b)(1)(A) and agricultural producers in the process of legal right to access and harvest the (b)(3)(A) clearly states that VAPG grants organizing one of the four program majority of the agricultural commodity are to assist an eligible producer in eligible entity types that will operate a that will be used for the value-added developing a business plan for viable value-added venture and that will be product. marketing opportunities or in owned and controlled by those same developing strategies that are intended agricultural producers identified in the Local or Regional Supply Network to create marketing opportunities for the steering committee at time of Comment: One commenter proposes producer. The definition contradicts the application, and will supply the the following adjustments to the local or statute by granting consultants exclusive majority of the agricultural commodity regional supply network definition. rights to awards for marketing plans. for the value-added project during the Local or regional supply network: An Moreover, this definition also directly grant period. interconnected group of entities through contradicts the allowance in (3) A harvester of an agricultural which agricultural based products move commodity that can document their § 4284.923(a) for producers to count from production through consumption their time in developing marketing legal right to access and harvest the in a local or regional area of the United majority of the agricultural commodity plans as in-kind matching contributions. States. Examples of participants in a Therefore, the commenter proposes that that will be used for the value-added supply network may include product. Harvesters do not meet the the definition be fixed to read: agricultural producers, aggregators, ‘‘Marketing plan: A plan for the project Agricultural Producer definition and processors, distributors, wholesalers, may only apply as an Independent that identifies a market window, retailers, consumers, and entities that potential buyers, a description of the Producer applicant type. organize or provide facilitation services The commenter states that applicant distribution system and possible and technical assistance for promotional campaigns.’’ ownership and control is the consistent development of such networks. language used throughout the program Response: The Agency agrees with the Response: The Agency disagrees. The definitions and should be maintained in commenter and has revised the rule definition of Marketing Plan is not the independent producer definition. accordingly. inconsistent with the statute at 7 U.S.C. ‘‘Marketing,’’ ‘‘agricultural commodity,’’ 1621(b)(1)(A) and (b)(3)(A) or language and ‘‘value-added product’’ are Locally-Produced Agricultural Food on eligible uses of grant and matching conforming uses previously noted. Product funds in the proposed rule in Steering committees need to be Comment: One commenter § 4284.923(a). included as eligible independent recommends the following revised Matching Funds producer applicants, and Cooperative definition: Programs determined to allow as Locally-produced agricultural food Comment: One commenter states that eligible, formation of any one of the four product. An agricultural food product, applicant in-kind as an eligible match is applicant entity types from steering as defined in this subpart, that is raised, not listed, though it is stated as being committee. Harvesters must be included produced, and distributed in: allowable for the development of as independent producers for eligibility, (1) The locality or region in which the business plans and/or marketing plans and can only apply as independent final product is marketed, so that the and suggests revising for greater clarity. producers because they do not meet the total distance the product is transported The commenter requests guidance on Agricultural Producer definition is less than 400 miles from the origin of determining appropriate valuation for requirements. the product; or applicant in-kind match.

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Response: The Agency will provide definition, will have a chilling effect on • Matching funds must be from guidance on the valuation of matching potential farmer and rancher applicants. eligible sources without a conflict of funds in the application package. To be consistent with the allowance interest and without the appearance of Comment: One commenter suggests in § 4284.923(a), the rule must clearly a conflict of interest. (proposed the following revised definition: state that producer time, travel § 4284.931(b)(4)(ii)) Matching funds. A cost-sharing expenses, purchased materials, and • Matching funds must be provided contribution to the project via other expenses incurred working on the in the form of confirmed applicant cash, confirmed cash or funding project are eligible in-kind matching loan, or line of credit; or confirmed commitments from eligible sources contributions for grants and do not third-party cash or eligible third-party without a real or apparent conflict of present a conflict of interest. Therefore, in-kind contribution. (proposed the commenter recommends the § 4284.931(b)(4)(v)) interest, that are used for eligible project • purposes during the grant funding following modifications to the Examples of ineligible matching period. Matching funds must be at least definition: funds include funds used for an equal to the grant amount, and Matching funds: ‘‘A cost-sharing ineligible purpose, contributions combined grant and matching funds contribution to the project via donated outside the proposed grant must equal 100 percent of the total confirmed cash or funding period, third-party in-kind contributions project costs. All matching funds must commitments or via anticipated in-kind that are over-valued, expected program be verified by authentic documentation contributions from eligible sources income at time of application, or from the source as part of the without a conflict of interest that are instances where the potential for a application. Matching funds must be used for eligible project purposes during conflict of interest exists, including provided in the form of confirmed the grant period. Eligible matching applicant in-kind contributions in applicant cash, loan, or line of credit, or funds include confirmed applicant cash, § 4284.923(a). (proposed § 4284.931(b)(4)(vi)) provided in the form of a confirmed loan or line of credit, non-Federal grant The commenter specifically asks: Is applicant or family member in-kind sources (unless otherwise provided by applicant match ineligible as a matter of contribution that meets the law), and eligible in-kind contributions, being a conflict of interest (as inferred requirements and limitations in and third party cash or eligible third- here) or is it allowed as states in § 4284.923(a); or confirmed third-party party in-kind contributions. Matching § 4284.923(a)? cash or eligible third-party in-kind funds must be at least equal to the grant Response: The Agency agrees with the contribution; or confirmed non-federal amount, and combined grant and commenter that the proposed text as grant sources (unless otherwise matching funds must equal 100 percent given is confusing. The Agency has provided by law). See examples of of the total project costs. All eligible revised § 4284.923(a) and (b) to include ineligible matching funds and matching cash and in-kind matching funds limited applicant in-kind match. In funds verification requirements in contributions must be spent on eligible addition, the Agency has revised §§ 4284.924 and 4284.931. expenses during the grant period, and § 4284.924 to make the rule clearer. The commenter states that using the are subject to the same use restrictions terms ‘‘real or apparent’’ conflict of as grant funds.’’ Medium-Sized Farm interest is more consistent with Federal Response: The Agency has revised the Comment: One commenter states that procurement standards and replaces the definition of Matching Funds to include the final rule should provide a more term, ‘‘potential’’ conflict of interest. allowance of limited applicant in-kind reasonable definition of medium-sized Note, this definition has been matching contributions. farms and ranches. The proposed rule significantly modified from the Comment: One commenter asks why defines the medium-sized farms and proposed rule definition to be consistent matching funds can only be provided by ranches as those with average annual with the Agency intention to allow ‘‘eligible sources without a conflict of sales between $250,000 and $700,000. limited applicant in-kind contributions interest.’’ Doesn’t providing matching The commenter recommends the as match. Also, a significant amount of funds create an inherent conflict of following amendment to the medium- the proposed rule definition (examples) interest? It appears that by adding the sized farm definition: ‘‘Medium-sized has been moved to § 4284.931 for ‘‘without a conflict of interest’’ farm: A farm or ranch that has averaged ‘‘verifying match funds.’’ restriction, it conflicts with many other between $250,001 and $1,000,000 in Response: The Agency agrees and the parts of the definition. For instance, the annual gross sales of agricultural definition has been revised to include applicant would have a conflict of products in the previous three years.’’ the allowance of limited applicant in- interest, yet the definition states that According to USDA data, all sales kind contributions. applicant cash is permissible. classes above $5,000 and below Comment: One commenter states that Response: The Agency disagrees with $1,000,000 are declining in numbers. this paragraph is not, on the whole, a the commenter. The matching funds The proposed rule defines small farms definition, but rather a set of substantive requirement does not constitute an as those with sales below $250,000. The rule provisions that probably belong in inherent conflict of interest. sales classes between $250,000 and the body of the rule rather than in the Comment: One commenter states that $1,000,000 are the so-called definition section. Mixing detailed text in the proposed rule concerning ‘‘disappearing middle’’ of agriculture operational provisions into a definition conflict of interest, in-kind that Secretary Vilsack has so eloquently is generally not considered good rule contributions, and matching funds is addressed in his public speeches. This writing practice. Second, and far more confusing and contradictory to other is the segment of agriculture perfectly importantly, the omission of any text and needs to be consistent. The tailored for the VAPG program and its mention of producer in-kind matches commenter points to the following text: value-added income opportunities. while specifically referencing third- • Also, note that in-kind matching While nearly 60 percent of the total party in-kind match clearly implies that funds may not be provided by a person value of agricultural production is applicant time is not an eligible match or entity that has a conflict of interest captured by farms of over $1 million in and, combined with the proposed rule’s or an appearance of a conflict of sales, the disappearing middle still broadly defined conflict of interest interest. (proposed § 4284.924) represents a substantial amount of

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production—25 percent but declining— majority of farm or ranch producer’s the entire tax burden related to the grant and a large number of total producers. income will be below $250,000. Keeping (though the grant will most likely They are well-situated, as the the upper limit at $700,000 could make benefit multiple producers). If other Secretary repeatedly points out, to take it more difficult for a medium size farm members of the supply network were advantage of value-added opportunities to compete for VAPG funding, if that able to be listed as co-applicants, the tax in local and regional food systems and $700,000 farm income was really a burden could be shared. in bioenergy and bioproducts. While feasible and viable operation. Response: The mid-tier value chain their ability to compete in the raw, One commenter suggests that the applicant must be one of the four undifferentiated commodity market is current definition of ‘‘mid-size farmer’’ eligible applicant types and the project unlikely to be a path to survival and (i.e., gross farm income up to $750,000) eligibility requirements at § 4284.922 prosperity without further farm is an appropriate standard, and should have been revised accordingly. Other consolidation and the lost economic be maintained. The segment of members of the supply network may not opportunity that goes with it, competing production agriculture in the Midwest be listed as co-applicants, but should be in the value-added market can be a good that has experienced greatest referenced in accordance with project bet for these farms. It is reasonable to contraction is the ‘‘ag in the middle’’, eligibility requirements. expect that those farms with successful independent ‘‘family farm scale’’ farmers Comment: One commenter states that value-adding enterprises are more likely that try to make a full time living, the final rule should make small than others to be in that higher profit typically in commodity agriculture. This improvements to the mid-tier value margin category. From a family farm group would most benefit from value- chain provisions to ensure maximum and rural development perspective, added strategies because they typically responsiveness and effectiveness. The policy, including the VAPG program, already have production ability, and rules should be written in a way that is should do everything it can to increase using value-added strategies properly descriptive of what their numbers. (individually or as members of a co-op characterizes these marketing The higher the reliance on on-farm or LLC) would provide a useful hedge relationships without inadvertently income, the more important value- to their income. In the Midwest, a precluding non-traditional marketing adding strategies become. Targeting the $750,000 operation would only alliances that achieve the desired result program’s small and medium-sized represent a dairy operation of a 200 cow of increasing markets for producers and family farm priority toward the larger dairy (23,000 lb herd average, $17/cwt), improving their ability to achieve fair small farm class plus the disappearing or a 1250 acre commodity crop prices. For instance, mid-tier value middle makes a great deal of sense. operation (corn at $3/bushel, 200 chains may include non-profit These farms rely on farm income for a bushel/acre yield). Neither of these size organizations that provide aggregation, majority of household income, but need operations are ‘‘big’’ by modern processing, or transportation services for to tap into value-adding enterprises and standards, yet they are the size producers to facilitate sales to local markets to secure a long-term financial operation that is being lost the fastest. institutions and markets. Community future. Providing support to this scale of supported agriculture projects are Creating a single farm size threshold operation maintains working families on sometimes organized by an individual for all of agriculture is a difficult the land, independent ownership in the producer acting on behalf of and with proposition given the great diversity of supply chain, and supports rural the support of allied farmers or ranchers U.S. agriculture. For instance, specialty economies. to market of their aggregated product to crop and dairy farms have a much Response: It is the position of the institutional and other emerging higher percentage of farms over the $1 Agency that the ‘‘$1 million average markets. As various kinds of mid-tier million sales threshold than the rest of annual gross sales of agricultural value chains like those above are still agriculture and for both the vast commodities in the previous three emerging, the final rule should be as majority of production comes from years’’ is more consistent with expert inclusive and flexible as possible. those largest farms. While the $700,000 commentary on the subject of The commenter proposed the threshold in the proposed rule might be ‘‘agriculture in the middle,’’ and is following small adjustments to the mid- roughly adequate for grain farms, and consistent with the Agency prerogative tier value chain definition. far more than adequate for poultry to be more inclusive. The upper limit of Mid-tier value chain: Local and farms, it is significantly too low for gross sales for a medium sized farm will regional supply networks that link dairy and produce farms. While one be changed to $1,000,000. independent producers with businesses could imagine a more complex rule with and cooperatives that market value- Mid-Tier Value Chain thresholds that vary by type of farm, if added agricultural products in a manner the final rule sticks with a single Comment: One commenter asks if the that: threshold, it is important that it works only type of eligible applicant is an (1) Targets and strengthens the and makes sense for agriculture as a independent producer. The commenter profitability and competitiveness of whole. While not perfect, the $1 million suggests expanding this text for small and medium-sized farms and threshold is more defensible than the clarification purposes to include all ranches that are structured as a family proposed rule’s $700,000. eligible applicant types (e.g., APG, farm; and One commenter proposes that the Cooperative, and MCPBBV). (2) Obtains agreement from eligible average annual gross sales be between The commenter adds that Federal individual producers or an eligible $250,001 and $750,000, so that it Register Vol. 74, No. 168, 9/1/2009 agricultural producer group, farmer or matches the SBA’s size standard for (45168–9) explicitly states that all 4 rancher cooperative, or majority crop and animal production. producer types are eligible for the Mid- controlled producer-based business One commenter states that $500,000 Tier Value Chain and suggests revising venture that is engaged in the value is more appropriate for the upper limit. the Definition section for Mid-Tier chain on a marketing strategy. The commenter states that anything Value Chain to reflect this. The (3) For mid-tier value chain projects over $500,000 would be considered commenter states that independent the Agency recognizes that, in a supply large by the majority of farmers and the producers have hesitated to be the chain network, a variety of raw farm industry in their region/area. The applicant as that person then must bear agricultural commodity and value-

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added product ownership and transfer consultants, and should be encouraged differentiated agricultural production arrangements may be necessary. to do so, but they cannot be required to eligibility standard that demonstrated Consequently, applicant ownership of do so by rule. added value to the product). According the raw agricultural commodity and Otherwise the rule is in direct conflict to the commenter, without a definition value-added product from raw through with the statute. for this term, its interpretation will be value-added is not necessarily required, The commenter recommends the left open to many various reviewers as long as the mid-tier value chain following definition: Planning grant: ‘‘A across the United States and will be proposal can demonstrate an increase in grant to facilitate the development of a applied in a non-uniform manner. The customer base and an increase in defined program of economic planning National Office will be called upon revenue returns to the applicant activities to determine the viability of a continuously to discern eligibility on a producers supplying the majority of the potential value-added venture, and case-by-case basis, which is very raw agricultural commodity for the specifically for the purpose of paying for inefficient. Eligibility for this category project. a qualified (third-party) consultant should rely upon differentiated or non- Response: The Agency agrees and including to conduct and develop a standard agricultural production recognizes that mid-tier value chains are feasibility study, business plan, and/or practices that are demonstrated in the intended to be relatively flexible and marketing plan associated with the application using a quantifiable inclusive of many types of entities that processing and/or marketing of a value- comparison with products produced in can facilitate and find mutual benefit in added agricultural product. A planning the standard manner. partnership. The Agency has revised the grant may be used in whole or in part Response: The Agency agrees with the eligibility requirements at § 4284.922 for for the purpose of paying for a qualified recommendation and has added a Mid-Tier Value Chain to include third party consultant. Use of third definition for this term. nonprofit organizations as possible party consultants is strongly participants. encouraged.’’ Project Comment: One commenter Response: The Agency disagrees with Comment: One commenter recommends clarifying the definition to the commenter. The statute provides recommends revising the definition of indicate that a minimum of two small/ that grants are made to eligible ‘‘project’’ to refer to ‘‘eligible’’ activities. medium-sized farms must benefit from applicants to ‘‘assist’’ in the Response: The Agency agrees with the the MTVC project and that the eligibility development of feasibility studies, suggested edit and has revised the requirement of ownership of raw marketing plans, business plans and the definition as suggested. commodity through to the VA product definition of Planning Grant is Rural Development is waived only for MTVC projects. consistent with statute. Response: The Agency disagrees with Comment: One commenter states that the first item because it is inconsistent Pro Forma Financial Statement the term needs to be moved in the rule with statutory language. The Agency Comment: One commenter for proper alphabetizing. agrees with the commenter on the recommends revising this definition to Response: The Agency has placed this second item and has revised the rule require a minimum of three years for the term in alphabetical order. projections included in the statement. accordingly. Socially Disadvantaged Farmer or The commenter states that standard Planning Grant Rancher business practice for financial Comment: One commenter states that projections for a new venture is a Comment: One commenter states that this definition makes clear that planning minimum 3 years, and is often between a provision reserving a portion of VAPG grants are to be used to develop a 5–10 years. A 3-year minimum standard funding for members of socially feasibility study which may include a for financials is appropriate for VAPG disadvantaged groups that was business and/or marketing plan. The ventures that may then move on to use introduced in 2009 is continued in the statute provides for two types of grants, working capital funding for a 3-year 2010 proposed rules. According to the one to perform feasibility studies and project. commenter, this provision raised a one for working capital. Clearly what Response: The Agency agrees with the question last year as to whether the the Agency and the proposed rule refer commenter and has revised the rule qualifying 51 percent all had to belong to as planning grants are the first of the accordingly. to the same socially disadvantaged two statutory grant strategies. The group or could belong to different statute directs the Agency to make Produced in a Manner That Enhances groups (e.g., qualified ethic groups, grants to producers to perform the Value of the Agricultural Caucasian females). USDA staff had no feasibility studies and develop business Commodity firm guidance on this last year, which plans. Thus, the statute requires the Comment: One commenter states that is understandable for a new rule. The Agency to make planning grants to the term ‘‘produced in a manner that commenter would like to see it clarified producers who in turn will perform enhances the value of the agricultural in the 2010 rules. The 2009 rules states feasibility studies and development commodity, which is used in the Value- that the 51 percent was decided by head business plans. Added Agricultural Product definition, count rather than ownership share; the The ‘‘planning grant’’ definition must needs to increase understanding and proposed 2010 rule seems more be changed to conform to the statute at implementation for this important ambiguous. 7 U.S.C. 1621 1621(b)(1)(A) and product eligibility category (1 of the 5) Response: The statute provides a (b)(3)(A) and to clarify that these grants in order to mitigate product eligibility reservation of funding for projects ‘‘to are designed to benefit producers who problems or interpretations that have benefit’’ Socially Disadvantaged Farmers by statute may perform the feasibility presented during the history of the and Ranchers. It is the position of the study. The commenter supports the program (pot-in-pot produce, T-bar Agency that an applicant must meet the notion that use of a ‘‘qualified (third- grape vine, plugs, container grown trees: statutory definition of Socially- party) consultant’’ may be strongly all previous products that were Disadvantaged Farmer or Rancher to encouraged. Applicant producers ultimately (and correctly) deemed qualify for reserved funding. Therefore, should have the option to hire ineligible due to not meeting a the applicant must be an individual

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independent producer or an entity be an individual independent producer and be less likely to dissuade some comprised of 100 percent Socially- or an entity comprised of 100 percent applicants from applying. Disadvantaged Farmers or Ranchers. Beginning Farmers or Ranchers. Two commenters recommend The statute also gives priority to The statute also gives priority to providing a 90-day notice rather than a projects that ‘‘contribute to increasing projects that ‘‘contribute to increasing 60-day notice. One of the commenters opportunities’’ to Socially opportunities’’ to Beginning Farmers or states that, providing a 90-day notice is Disadvantaged Farmers or Ranchers. Ranchers. This priority is implemented more useful to producers than a 60 day This priority is implemented through through the award of additional points notice. While the existence of a fixed the award of additional points in the in the scoring process. It is the position annual application deadline would scoring process. It is the position of the of the Agency that entities comprised of allow farmers and support systems to be Agency that entities comprised of at at least 51 percent Beginning Farmers or planning for applications throughout least 51 percent Socially-Disadvantaged Ranchers are eligible to receive priority the year, the commenter’s experience is Farmers or Ranchers are eligible to points. that most new applicants only hear receive priority points. The Socially- about the program once it is announced. Disadvantaged Farmer or Rancher Value-Added Agricultural Product Having the longer time frame helps members of such an entity do not have Comment: One commenter increase the pool of eligible and to be members of the same Socially- recommends deleting ‘‘or product’’ from qualified applicants, plus providing Disadvantaged group. this term, as the commenter adequate time to adjust to any new Comment: One commenter notes that recommends combining the terms changes in the annual NOSA. the definition of socially-disadvantaged ‘‘agricultural commodity’’ and The other commenter states that, due farmers and ranchers includes a 51 ‘‘agricultural product’’ and labeling them to the requirement to submit an percent threshold for group as ‘‘agricultural commodity’’. independent feasibility study and applications. While there are a number business plan that is specific to the Response: The Agency agrees with the of producer cooperatives that are made proposed project with working capital suggested edit and has revised the up exclusively or almost exclusively of proposals, a 90-day application period definition as suggested. socially disadvantaged farmers and seems more appropriate. This would ranchers, the commenter does not know Venture allow for better and less costly studies, of any cooperatives or businesses that and be less likely to dissuade some Comment: One commenter consist exclusively of beginning applicants from applying. recommends adding ‘‘and its value- producers. The needs and realities of One commenter notes that the Federal ’’ the two groups are distinct. A majority added undertakings to this definition. Register (Vol. 74, No. 168, 9/1/2009) of members of socially disadvantaged The commenter states that the venture states: ‘‘This notice announces the producer groups and co-ops often have includes the value-added undertakings availability of approximately $18 many years of agricultural experience and is not limited to the business alone. million in competitive grants for FY and can work with any beginning However, the venture may include 2009 to help independent agricultural producers in the group. initiatives that are not grant or value- producers enter into or expand value- So while a 51 percent standard makes added project eligible, hence, the ‘‘other added activities, with the following sense for socially-disadvantaged groups, related activities.’’ clarifications and alterations: (8) it does not make sense for beginning Response: The Agency agrees with the provides a 90-day application period.’’ farmers and ranchers. Rules, to be suggested edit and has revised the The commenter asks, going forward, effective, must reflect the facts on the definition as suggested. will the 90-day period become ground and not some nonexistent ideal Environmental Requirements standardized? world. Moreover, mentoring by more (§ 4284.907) One commenter requests that the experienced farmers is a need and an application period be open for 90-days opportunity specific to enterprises Comment: Two commenters suggest, to allow us the maximum amount of including beginning farmers and in reference to working capital grants, time to properly prepare and submit our ranchers which also makes the 25 replacing reference to Form RD 1940–22 grant request. percent threshold for beginners an with Form RD 1940–20. The One commenter states that much appropriate measure to qualify a project commenters note that, for other Agency more critical for the improvement of the for this reserved fund. applications, the applicant provides VAPG program is not the date The commenter prefers to leave the Form RD 1940–20, and the Agency applications are due, but that the specific threshold to the annual, completes Form RD 1940–22. application window for applications iterative NOFA process, so the Agency Response: The Agency has revised will always be sufficiently long to allow and the public can learn from this section to refer to Form RD 1940– applicants to develop good proposals. experience about what works best to 20, rather than Form RD 1940–22. Thus, the rule should require that not less than 90 days be allowed from the ensure the intent of Congress is fulfilled. Application Windows and Deadlines time Rural Development invites If that route is chosen, the language of (§ 4284.915(d)(2)) the NOFA must be crystal clear about applications to the time Rural the 25 percent standard and not Comment: One commenter states that Development closes its application preclude a reasonable result by way of the proposed rule indicates that the window. The commenter further states a super restricted definition. annual application period must be open that the proposed rule’s provision that Response: The statute provides a within 60 days of the due date. applications be submitted each year on reservation of funding for projects ‘‘to However, due to the requirement to or before March 15 is unwise. There is benefit’’ Beginning Farmers and submit an independent feasibility study no way to assure this date will always Ranchers. It is the position of the and business plan that is specific to the be honored based on the experiences of Agency that an applicant must meet the proposed project with working capital any given fiscal year. The commenter statutory definition of Beginning Farmer proposals, a 90-day application period states that the rule should state that or Rancher to qualify for reserved seems more appropriate. This would application dates will be set by Rural funding. Therefore the applicant must allow for better and less costly studies, Development annually via Federal

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Register notice or in RD Instruction Cooperative, Agricultural Producer the passion of a land based farm 1940–L. Group and Independent Producer to operation. Response: The Agency agrees that allow members of applicant entities to In addition, the commenter feels they there should be at least a 60-day be identified by individual name or by fully qualify as a ‘family farm’ as application window, but will provide class. defined in the context of the VAPG. The notification via the annual NOFA rather Comment: One commenter applauds VAPG definition of a family farm is as than revising the rule text. the Agency for eliminating previous follows; ‘‘A Family Farm produces language requiring cooperatives to agricultural commodities for sale in Applicant Eligibility (§ 4284.920) identify all members of the cooperative. sufficient quantity to be recognized as a Comment: One commenter believes The rule as currently proposed provides farm and not a rural residence, owners that the definition of ‘‘beginning farmer reasonable eligibility requirements for are primarily responsible for daily or rancher,’’ as it applies to group cooperatives to apply for VAPG funding. physical labor and management, hired proposals, should be changed to fix a Previous language should not be help only supplements family labor, and very serious problem with the proposed introduced in the final rule that would owners are related by blood or marriage rule and suggests language for this. If add the burdensome requirement of or are immediate family.’’ the Agency does not change the providing the names, addresses, etc. of The commenter states their fishing definition, then the commenter all co-op members. boat is most assuredly not a recreational recommends the following language be Response: As noted in the response to vessel, but a ‘‘machine shop on the added under § 4284.920, as a new the previous comment, the Agency has water.’’ The commenter and her paragraph(c) as follows and re-designate revised the definitions of Farmer or husband are the primary owners and the remaining sections accordingly: Rancher Cooperatives to allow members operators, working year around to keep (c) Beginning farmers or ranchers. To of applicant cooperatives to be the business afloat. They do hire qualify for the priority for projects that identified by individual name or by seasonal helpers, but their labor is contribute to opportunities for class. temporary and highly seasonal. The beginning farmers or ranchers or for the commenter states that she and her Type of Applicant—Independent reserved fund for projects that benefit husband are related by 33 years of Producer (§ 4284.920(a)(1)) beginning farmers or ranchers, an marriage and cannot understand why applicant that is an agricultural Comment: One commenter states that they would be considered anything producer group, a farmer or rancher they have no written record of why they other than a ‘‘family farm.’’ cooperative, or a majority-controlled did not qualify for the VAPG, the Response: It is Agency practice to producer-based business venture must awards for which were recently provide feedback to applicants be comprised of at least 25 percent announced in late May 2010. The determined ineligible or which were beginning farmers or ranchers. commenter states that, as a commercial unsuccessful in competition. Failure to Response: The statute provides a fishing operation, they could not qualify do so was an oversight. The ‘‘Type of reservation of funding for projects ‘‘to for any of the 15 points associated with Applicant’’ category provided priority benefit’’ Beginning Farmers and criteria, ‘‘Type of Applicant.’’ This points for applicants that could Ranchers. It is the position of the disqualification makes it extremely document that they were Beginning Agency that an applicant must meet the difficult, if not impossible, for Farmers or Ranchers, Socially- statutory definition of Beginning Farmer commercial fishing families to earn Disadvantaged Farmers or Ranchers, or or Rancher to qualify for reserved sufficient points to win an award, proposing a Mid-Tier Value Chain. The funding. Therefore, the applicant must though they were invited to apply. The Agency’s position has been that be an individual independent producer criterion represents the largest block of Agricultural Harvesters, though or an entity comprised of 100 percent points of any of the criteria. The fact considered Independent Producers, do Beginning Farmers or Ranchers. that fishing families cannot receive not meet the definition of Farmer or The statute also gives priority to these points is never mentioned in the Rancher. projects that ‘‘contribute to increasing application. The commenter states they Comment: One commenter notes that, opportunities’’ to Beginning Farmers or spent months writing their grant; time in the past, eligible grantees have Ranchers. This priority is implemented they would not have spent had this included such producers as fishers and through the award of additional points crucial fact been made at all apparent. forest gatherers. The commenter in the scoring process. It is the position Without the benefit of actually reading recommends that this be clearly of the Agency that entities comprised of the critique, it is their understanding reaffirmed in the new rule—it is at least 51 percent Beginning Farmers or that commercial fishing people are implied, perhaps, but not clearly stated. Ranchers are eligible to receive priority considered ‘harvesters’ not ‘producers,’ The commenter states that the points. or some such hair-splitting that proposed rule continues the Comment: One commenter requests struggles to make meager sense. requirement that every owner of the that the VAPG program not have a Therefore, they cannot be considered, as agricultural producer entity themselves requirement to list owners and owners a ‘‘medium-sized farm or ranch that is be involved in farming. According to the of owners. The commenter states that, structured as a family farm.’’ Though commenter, this is a very unrealistic when this requirement was in place in water-based, commercial fishing requirement. Recent USDA studies have the past, it precluded them from families take as much care, attention noted that successful farms frequently applying for a grant at all. As a and nurturance to their surroundings as rely on nonfarm income. Furthermore, marketing association with nearly 400 any land-based agricultural operation. family farms invariably become divided members, the commenter states it is The Alaska salmon industry was first in in their ownership among members who impossible for them to provide this the nation to receive the Marine farm and members who retain a link to information and hope this requirement Stewardship Council award for the farm but have moved off the farm. will not be part of the upcoming grant sustainable management of this precious Therefore, the commenter recommends program. national resource. That coveted award is that the rule be revised to a simple Response: The Agency has revised the proof positive that the fishing families requirement that the farm be operated definition of Farmer or Rancher foster and protect this resource with all by at least one owner of the farm entity.

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Response: The Agency has revised The commenter recommends that would have to be citizens or nationals Independent Producer definition to specific guidance about the as long as they had one immediate explicitly include ‘‘agricultural characteristics or attributes of an family member meet citizenship harvesters’’ such as foresters and ‘‘emerging market’’ be clearly stated in requirements; thereby allowing a 100 fishermen and revised the definition of the rule. The commenter notes that the percent non-US-owned entity to be Agricultural Producer to indicate what rule does not quantify or appear to give eligible for public federal grant dollars. constitutes direct involvement in specific guidance to what constitutes an Response: The Agency agrees that the farming. emerging market, particularly as it suggested revision clarifies the intent of pertains to the amount of time that the this paragraph and has revised the Type of Applicant—Agricultural applicant has been working in paragraph as suggested by the Producer Group (§ 4284.920(a)(2)) developing that emerging market. commenter. Comment: Numerous commenters According to the commenter, previous Multiple Grant Eligibility (§ 4284.920(e)) recommend allowing producer groups interpretations of the emerging market or entities made up of more than 25 rule were that applicants had to be Comment: One commenter believes percent beginning farmers and ranchers active in that market less than 2 years allowing producers to submit separate to apply for the funds reserved by the at the time of application. The VAPG applications under multiple Farm Bill specifically for projects commenter states, however, it may entities provided the producer owns no benefitting beginning farmers and entirely appropriate for such guidance more than 75 percent of any one of the ranchers. The proposed rule dictates to not be incorporated into this entities is too generous and could lead that all members of the farmer group or proposed rule, for two reasons: to abuse and work against the wide co-op must be beginning farmers or First, during this current rule writing distribution of VAPG assistance to many ranchers, a very unlikely situation in the process, the VAPG program has unaffiliated producers. The commenter real world. The requirement will experienced an extended period of time recommends that the 75 percent level be preclude mentoring opportunities with when no applications were received: i.e. either reduced to 5 percent or simply more experienced farmers. July 2008, November 2009, and now prohibited. According to the Three commenters point out that, presumably March 2011. The impact is commenter, one VAPG per year is while there are many new farmers and that organizations that were not ‘‘ready’’ plenty for anyone given the scarcity of many of them will cooperate on these in 2008 or even parts of 2009 might not funds and the plethora of good ideas. projects, it is the mentoring and meet a 2-year emerging markets test if Response: The Agency disagrees with collaboration with more experienced such were applied in a March 2011 the commenter. Seventy-five percent is farmers that can ensure success. The application. This would unfairly suitable to discourage multiple more experienced farmers as well need disadvantage those particular applications. to be supported and allowed to develop applicants. Comment: One commenter their businesses for the mutual benefit Second, there is merit in requiring an recommends revising § 4284.920(e) by of the new farmers. Also, it is unlikely applicant to justify how the specific replacing ‘‘this notice’’ with ‘‘a that all members of the farmer group or application meets the definition of an solicitation.’’ According to the co-op would be beginning farmers or ‘‘emerging market.’’ commenter, there is a need for ranchers. Therefore, the Agency should Response: The Agency has revised the applicants to explicitly designate the ensure the final rule includes a definition of Emerging Market to clarify category in which they wish to compete reasonable standard to measure its meaning and to indicate that in order so it is not a judgment call by reviewers. significant benefit to beginning farmers. to meet the definition, an applicant Response: The Agency agrees that the Response: The statute provides a must not have supplied the product, suggested revision clarifies the intent of reservation of funding for projects ‘‘to geographic, or demographic market for this paragraph and has revised the benefit’’ Beginning Farmers and more than two years at time of paragraph as suggested by the Ranchers. It is the position of the application submission. commenter. Agency that an applicant must meet the Active VAPG Grant (§ 4284.920(f)) statutory definition of Beginning Farmer Citizenship (§ 4284.920(c)(2)) or Rancher to qualify for reserved Comment: One commenter states that Comment: One commenter states that funding. Therefore the applicant must the ‘‘51 percent citizenship’’ requirement past VAPG rules have included similar be an individual independent producer is prohibitive for associations with large provisions regarding active VAPG or an entity comprised of 100 percent membership bases. Gathering ownership grants. However, 2009 was the first year Beginning Farmers or Ranchers. and citizenship information from that project periods could be as long as The statute also gives priority to hundreds of entities is impossible, not 36 months (as opposed to the previous projects that ‘‘contribute to increasing only because of the sheer number, but 12 month limit). This means more opportunities’’ to Beginning Farmers or also because many simply will not share repeat applicants are likely to have open Ranchers. This priority is implemented it for confidentiality reasons. projects when the next proposal period through the award of additional points Response: The Agency agrees with the comes around. Also, the commenter in the scoring process. It is the position concern raised by the commenter. The would like clarification as to whether of the Agency that entities comprised of grant agreement requires the grantee to ‘‘within 90 days’’ means before or after at least 51 percent Beginning Farmers or certify that it meets the citizenship the NOFA date. Ranchers are eligible to receive priority requirement. Information collection is The commenter adds that, like last points. not required. year, VAPG projects were permitted to Comment: One commenter run up to 36 months. The 2009 rules Emerging Market (§ 4284.920(b)) recommends revising § 4284.920(c)(2) contained a provision that projects Comment: One commenter does not by replacing ‘‘immediate family running over 12 months had to have object to the expectation that all member’’ with ‘‘entity owners,’’ to clarify ‘‘unique tasks’’ each year, rather than a applicants, except Independent that at least one entity ‘‘owner’’ must be repeat of previous similar tasks Producers, be subject to an emerging a citizen or national. Otherwise, as (presumably such as advertising). The market test. originally drafted, none of the owners latter restriction is not included in the

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proposed 2010 rule, which, based on Project Eligibility (§ 4284.922) paragraph as suggested by the past experience, does not necessarily Purpose Eligibility (§ 4284.922(b)) commenter. mean that it would not be in the final Comment: One commenter rules and the commenter hopes it is not. Comment: One commenter states that recommends revising § 4284.922(b)(4) Response: The Agency does not agree the Agency should clarify that majority, because it is the primary budget and with the commenter’s assertion that farmer-owned community wind projects work plan description of requirements, active grant eligibility standard is a are eligible this year, like they have and should be augmented to include all deterrent to repeat applicants. In order been every year except for last round. necessary elements. The commenter to continue to fund a diverse array of The commenter further states the suggests the following revised text: projects from as many applicants as Agency should expand grant funding (4) The project work plan and budget possible, the Agency will retain the purposes such that funding can be used must: active grant eligibility standard that for farmer-owned community wind (i) Present a detailed description of requires active grants to be closed projects that are merchant plants the eligible planning or working capital within 90 days of the application (providing kilowatt-Hours to the grid) activities and specific tasks related to submission deadline, as published in (as well as for on-site electrical needs). the processing and/or marketing of the the annual NOFA. In Maine, like many deregulated value-added product, along with a electricity generation States, it is detailed breakdown of all estimated In response to the comment on the prohibited for a generation project larger costs associated with and allocated to requirement for ‘‘separate and unique than 660 kilowatt (kw) nameplate those activities and tasks; tasks’’ for multi-year working capital capacity to both provide electricity for (ii) Identify the key personnel that grants, it is not included in the rule and on-site needs, and to sell excess will be responsible for overseeing and/ will not be a program requirement. generation to the grid. Maine law does or actually conducting the activities and Comment: Three commenters note allow net-metering to be used for tasks, and provide reasonable and that the requirement for an applicant generators with up to 660 kw nameplate specific timeframes for completion of with an active value-added grant at the capacity, but not for larger generators. the activities and tasks; time of a subsequent application to Response: The project eligibility (iii) Identify the sources and uses of close out the current grant within 90 category related to renewable energy grant and matching funds for all days of the annual NOFA could be a was set by the 2008 Farm Bill and states activities and tasks specified in the concern with project periods as long as that a Value-Added Agricultural budget, and indicate that matching 36 months. With the longer projects, Product is ‘‘a source of farm- or ranch- funds will be spent at a rate equal to or more repeat applicants are likely to have based renewable energy, including E–85 in advance of grant funds; and open projects during subsequent fuel.’’ The Agency’s position is that (iv) Present a project budget period proposal periods. One commenter wind is not an agricultural commodity that commences within the specified expresses concern that meritorious or a Value-Added agricultural product. start date range indicated in the annual projects benefiting significant numbers Comment: One commenter solicitation, concludes not later than 3 of producers would be excluded from recommends revising § 4284.922(b)(1) years after the proposed start date, and consideration simply because a separate by replacing ‘‘annually’’ with ‘‘in the is scaled to the complexity of the project was approved in a previous annual’’ and adding reference to project. Response: The Agency agrees. The funding cycle. Perhaps there could be § 4294.915. The rule cites up to suggested additions are necessary for exceptions to this provision. $500,000 grant amount, and the annual Two commenters note that, by adding determination of eligibility. notice or solicitation will reduce that Comment: Four commenters arbitrary time constraints, such a amount for both planning and working prohibition would appear to undermine recommend that feasibility studies capital grants. The commenter suggests under § 4284.922(b)(5) not be required one of the goals of the program, in the following text: providing funding for projects that are for simplified applications for working The grant funds requested must not capital grants. The nature of projects likely to become self-sustaining in the exceed the amount specified in the future. applying via a simplified application is annual solicitation for planning and such that feasibility studies add little or Response: The VAPG program is a working capital grant requests, per no value in assessing the success of the popular and over-subscribed program. § 4284.915. venture. This eligibility requirement In order to continue to fund a diverse Response: The Agency agrees with the contributes little value to simplified array of projects from as many suggested revision and has revised the projects, but significantly increases applicants as possible, the Agency will paragraph as suggested by the costs and burden for simplified retain the active grant eligibility commenter. applications. standard. Comment: One commenter Response: The Agency agrees with the Comment: One commenter recommends adding a reference to commenters and has revised the rule to recommends deleting ‘‘anticipated conflict of interest in proposed indicate that simplified applications for award date’’ in this section and § 4284.922(b)(2) for conformity with working capital grants of $50,000 or less substituting ‘‘application submission standard conflict of interest federal are not required to submit feasibility deadline’’ as a more stable date and language. The commenter suggests that studies or business plans, but must requiring closeout of the prior grant this paragraph be revised as follows: provide information demonstrating more effectively to efficiently (2) The matching funds required for increased customer base and revenue commence the undertaking of the new the project budget must be eligible and expected to result from the project (see project, thereby promoting responsible without a real or apparent conflict of § 4284.922(b)(5)(ii)). use of public funds. interest, available during the project Comment: One commenter states that Response: The Agency agrees that period, and source verified in the § 4284.922(b)(5) is the first of the ‘‘application submission deadline’’ is a application. operational provisions of the proposed more appropriate for closing date and Response: The Agency agrees with the rule that is in conflict with 7 U.S.C. has revised the rule text accordingly. suggested revision and has revised the 1621 (b)(1)(A) and (b)(3)(A) and with

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§ 4284.923(a) of the proposed rule. To party is necessary for the evaluative Response: The statutory language has be in accord with the statute, the use of portions of these activities. Therefore, been interpreted to mean that the consultants may be encouraged but the Agency will retain its requirement Secretary may determine whether a cannot be required and, therefore, that feasibility studies be performed by business plan requirement for this recommended deleting ‘‘by a qualified independent third-parties. However, category is in the best interest of the consultant’’ from proposed applicants (and applicant family program. The Secretary has determined § 4284.922(b)(5). members, as necessary) are encouraged that the business plan is not in the best The commenter also stated that, to be to participate in the non-evaluative interest of the program at this time. As consistent with the producer in-kind portions of planning grants and may a result, a business plan is no longer contribution of the proposed rule, contribute time as in-kind match required for this product eligibility producer in-kind matching amounting to up to 25 percent of total category and the category is open to contributions must be recognized in project cost, provided that a realistic both planning and working capital proposed 4284.922(b)(5) in order to and relevant valuation of their time can applicants. avoid it seeming to override be documented, as described at Comment: One commenter § 4284.923(a). § 4284.923. recommends clarifying § 4284.922(b)(6) Response: The Agency disagrees that Comment: One commenter supports because, according to the commenter, § 4284.922(b)(5) conflicts with 7 U.S.C. the requirement that applicants for not all applicants will know there is a 1621 (b)(1)(A) and (b)(3)(A). The statute working capital be required to submit definition for, or remember to check, the provides that grants are made to eligible copies of their feasibility studies and definition for, ‘‘emerging market,’’ and applicants to ‘‘assist’’ in the business plans at the time of may jump to their own conclusions development of feasibility studies, application. The commenter states that about what that means. The suggested marketing plans, business plans. The it is aware of applicants who have revised text would read as follows: manner in which the Agency directs submitted working capital applications (6) If the applicant is an agricultural that the funds be used beyond this with the intent of ‘‘doing the paperwork’’ producer group, a farmer or rancher statutory requirement is determined by or ‘‘writing up the business plan’’ in the cooperative, or a majority-controlled Federal grant regulation and Agency period of time after the announcement producer-based business, the applicant policy. of the award of grant funds, but before must demonstrate that it is entering an Comment: One commenter does not the date when grant obligations must be emerging market unserved by the believe that a good business plan must honored. applicant in the previous two years. always or only be written by a third The commenter recommends that the Response: The Agency disagrees with party. Rather, the commenter believes statute’s requirement that there be a the suggested revision because the that the producer or producer group business plan should not prevent the definition is sufficient and is more members planning the enterprise often use of VAPG to further plan branding explicit than the text suggested by the have the ‘‘knowledge, expertise, and activities and the rule should include commenter. Therefore, the Agency has experience to perform the specific task this permission. The commenter points not revised this paragraph as suggested. required in an efficient, effective, and out that the VAPG statute includes Comment: One commenter states that authoritative manner’’—the proposed among the five categories of ‘‘value- agricultural producer groups are at an rule’s definition for qualified added agricultural product’’, ‘‘any immediate disadvantage because of not consultant. agricultural commodity or product that being eligible for the Reserved Funds Furthermore, the rule gives the * * * (ii) was produced in a manner pool. If the program still intends to Agency the right and responsibility to that enhances the value of the benefit producer groups, a portion of the assess the merits of the feasibility study agricultural commodity or product, as funds could be reserved for these and business plan, which removes any demonstrated through a business plan applicants. possible justification for having them that shows the enhanced value * * *’’ Response: If by ‘‘producer groups,’’ the done solely by non-producers. Grant According to the commenter, the commenter means farmer or rancher applications are reviewed at the local, Agency has consistently misapplied the cooperatives, the Agency has state and national level and proposal language of the statute to assert that no determined to assign priority scoring feasibility is a criterion for funding. planning activity involving branding or points to cooperatives in the ‘‘Priority Potential inadequacies with proposals nonstandard production method could Points’’ scoring criterion. The Agency is can be determined in this review be supported by VAPG. The logic used unable to assign a portion of reserved process without resorting to sweeping was to say, the statute calls for a funds to cooperatives, because reserved disqualifications that will make VAPG business plan, and therefore it must be fund priorities are set by statute. grants less accessible to the producers that any and all planning has been who need them most. completed and therefore no further Branding Activities (Proposed The commenter believes that planning is needed; leaving VAPG only § 4284.922(c)) dropping the reference to mandatory, to support working capital projects Comment: Numerous commenters exclusive use of qualified consultants is when branding/nonstandard production express concern over the 25 percent critical to conform to the statute and is proposed. According to the limitation on branding activities, create an internally consistent rule, and commenter, this interpretation recommending either removing it in its recommends deleting reference to ‘‘by a overreaches the statute’s mandate—yes, entirety or lowering the 25 percent. The qualified consultant’’ from there must be ‘‘a business plan that specific comments received are § 4284.922(b)(5). shows enhanced value’’, but the nature presented below. Response: The Agency disagrees with of business planning is that such a plan Three commenters recommend not the suggested edit that would remove is often an entrepreneur’s first effort to capping branding/marketing activities. reference to a ‘‘qualified consultant.’’ outline a business strategy. This first One of the commenters understands that The Agency recognizes the value of step is prudently followed by further the original intent of the VAPG program producer participation in planning testing (through a feasibility study, for was a pronounced focus on enhancing activities, while, at the same time instance) and elaboration (through a marketing and related activities. From acknowledging that an unbiased, third marketing plan, for instance). the commenter’s perspective, branding

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is an essential component of a project to be assisted with federal proposition. Use of packaging and marketing strategy/plan. As an eligible government dollars. branding are sometimes absolutely grant category (e.g. marketing activities), One commenter states that some essential to that process. Funding for it should not be capped. If the cooperatives have built recognized these types of activities, especially for regulatory interpretation is different, the name brands, which has helped build small ventures, is perhaps the most terms branding and product consumer loyalty and confidence and useful part of the Working Capital differentiation should be defined in the help to differentiate products in a program, as these dollars are incredibly § 4284.902, with examples provided for competitive marketplace. The VAPG has hard to come by for most producer- both eligible and ineligible activities. been instrumental in leveraging farmers’ owned ventures that we are familiar One commenter states that limiting investment in their own products to with. Thus, limiting expenditures to 25 these very valuable tools to 25 percent create and expand markets. The percent of total project costs seem to (or any significant limitation) would earnings from those sales flow through arbitrarily limit the usefulness of the impact a large number of applicants, the cooperative to the farmer-members program to producers. The limitation is raise interpretation issues, and seems to ultimately increasing their income. also vague: What expenses would be directly conflict with the purpose of the However, the proposed rule states: included in the limitation? Ad copy VAPG program. The commenter is ‘‘Branding activities. Applications that development? PR consultants? Sales uncertain of the purpose of limiting propose only branding, packaging, or samples? Demos? All activities that can some of the most important tools to other similar means of product be construed as ‘‘branding and accomplish the goals of the VAPG differentiation are not eligible under differentiation’’? The commenter program. this subpart. However, applications that suggests that, if there is to be a There are many examples of value propose branding, packaging, or other limitation on branding, packaging and created by packaging and branding product differentiation activities that are product differentiation, a more alone. For example, a current Frito Lay no more than 25 percent of total project reasonable limit might be 50 percent of costs of a value-added project for campaign for its Sun Chips brand touts total project expenses. The commenter’s products otherwise eligible in one of the ‘‘The World’s First 100% Compostable work with over 25 applications in 8 five value-added methodologies Chip Bag’’; the proposed rules would years suggests that their clients have specified in paragraphs (1)(i) through (v) exclude growers from VAPG funding to requested a maximum of marketing of the definition of value-added add value with similar green packaging. related expenses between 25 and 50 agricultural product are eligible.’’ The term ‘‘product differentiation’’ percent of total project costs. Limiting those activities to 25 percent One commenter states that the VAPG covers a lot of territory; product (or any significant percentage) would statute includes among the five differentiation in several forms is the constrain the ability of organizations to categories of ‘‘value-added agricultural very purpose of a value-added process. use some of the best marketing tools product,’’ ‘‘any agricultural commodity Asking one to create a value-added available to expand marking or PRODUCT that * * * (ii) was product without product differentiation opportunities. This seems to be in direct produced in a manner that enhances the is arguably an oxymoron. conflict with the purpose of the VAPG value of the agricultural commodity or One of the commenters states that as program. product.’’ According to the commenter, an agricultural producer group, One commenter points out that its RD recently changed its rules to limit branding activities are primarily what members have built recognized name this category to commodities grown in they do and hopes that there will not be brands, which has in turn built a ‘‘nonstandard’’ manner, such as restrictions placed on this very consumer loyalty and confidence, organic. Note that the statute is not important part of their activities under differentiating their products in a restricted to just the way a commodity which they might apply for grant competitive marketplace. The VAPG is raised; it also recognizes that consideration. program has been instrumental in PRODUCTS also have value-added to One commenter states that the leveraging farmers’ investment in their them through the way they are branding, packaging, or product own products to create and expand produced. Quite simply, this means that differentiation activities percent should markets. The earnings from those sales branding is an allowable, bona fide not be more than 10 percent of the total flow through the cooperative to the value-added activity supported by project cost (for those projects that farmer-members ultimately increasing VAPG statute. The ability to use VAPG otherwise eligibility under one of the their income. The commenter states that to promote branding should be five value-added methodologies limiting those activities to 25 percent (or permitted. The proposed rule would specified in paragraphs (1)(i) through (v) any significant percentage) would restrict branding to just 25 percent of a of the definition of a value-added constrain the ability of organizations to VAPG grant’s purpose. This percentage agriculture product). If the proposed use some of the best marketing tools is arbitrary to begin with, and it also activities exceed 10 percent, this could available to expand marking begs the question, if branding is 25 put the feasibility of the project at a opportunities. This is in direct conflict percent eligible, must not it be 100 higher risk. There is an indication in the with the purpose of the VAPG program. percent eligible? The answer is, by VAPG program that branding activity Thus, the commenter recommends statute, it is entirely eligible and should type proposals have not provided removing this limitation from the rule. be entirely permitted. strong, detailed evidence that the One commenter states that it is One commenter states that the income estimated is actually realistic. unclear as to what issue or program verbiage in proposed § 4284.922(c) is Packaging can be somewhat of a risky, outcome is being addressed by the problematic for many of its members. feasible expense, in terms of can it make proposed limitation on the amount of Building a brand name is one goal of enough difference in a new value-added expenditures that can be used for creating value-added products. Brand venture. These activities proposed at 25 ‘‘branding, packaging, and product names help create consumer confidence percent of the total project cost could differentiation.’’ For a value-added and loyalty in a competitive put the project in a high risk situation. consumer product, product marketplace. The VAPG has been A quarter of the project is too much to differentiation is a critical element of instrumental in leveraging farmers’ allow to be at risk, for a value-added developing an alternative market investments in their own brands to

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create and expand markets. The Reserved Funds Eligibility (Proposed Reserved Funds Eligibility (Proposed earnings from those sales flow through § 4284.922(d)(1)) § 4284.922(d)(2)) the cooperative to the farmer-members Comment: One commenter Comment: One commenter ultimately increasing their income. recommends clarifying proposed Limiting those activities would recommends revising proposed § 4284.922(d)(1), stating that § 4284.922(d)(2) to read as follows: constrain the ability of organizations to (2) If the applicant is applying for documentation standards need to be use some of the best marketing tools mid-tier value chain reserved funds, the specified in the rule to establish available to expand marketing application must provide uniform expectations, and to be opportunities. This seems to be in direct documentation demonstrating that the enforceable for eligibility conflict with the purpose of the VAPG project meets the Mid-Tier Value Chain program. determinations. The commenter definition, and must: One commenter believes the 25 suggested the following text: Response: The Agency agrees with the percent cap is not needed as long as the (1) If the applicant is applying for suggested revision and has revised the eligible product for the project meets beginning farmer or rancher, or socially- paragraph as suggested by the one of the five value-added disadvantaged farmer or rancher commenter. methodologies and the other project reserved funds, the applicant must Comment: One commenter eligibility criteria. However, if capped, provide the following documentation to recommends revising proposed the program will need to define or demonstrate that the applicant meets all § 4284.922(d)(2)(i) by adding reference illustrate what budget activities requirements for one of these to commodities and value-added, constitute ‘‘branding’’ in order to definitions. because both terms are possible in this calculate and confirm that application For beginning farmer or rancher, MTVC context, to read in part: ‘‘Through expenses do not exceed the limitation in which agricultural commodities and the budget. This commenter states that, documentation must include a description from each of the individual value-added products move from for clarity of branding eligibility production through consumption.’’ owner(s) of the applicant farm or ranch message, the language should be revised Response: The Agency agrees with the organization, addressing the qualifying to read, ‘‘no more than 25 percent of the suggested revision and has revised the elements in the BFR definition, total project costs of a value-added paragraph as suggested by the including the length and nature of their project with products otherwise eligible, commenter. having resulted from one of the five individual owner/operator experience at Comment: One commenter value-added methodologies.’’ any farm in the previous 10 years, along recommends revising proposed Response: The Agency recognizes that with one IRS income tax form from the § 4284.922(d)(2)(ii) by adding reference branding and packaging are important previous 10 years showing that each of to commodities for consistency with the components of value-added marketing the individual owner(s) did not file farm combined agricultural product/ strategies. In consideration of all of income; or a detailed letter from a CPA agricultural commodities definition. these comments, the Agency has or attorney certifying that each owner Response: The Agency agrees with the removed in its entirety proposed meets the reserved funds BFR eligibility suggested revision and has revised the § 4284.922(c), which would have requirements. paragraph as suggested by the imposed a 25 percent limitation on the For socially disadvantaged farmer or commenter. The Agency also revised uses of grant and matching funds for rancher, documentation must include a this paragraph to make reference to these activities. Thus, the rule does not description of the applicant’s farm or value-added products as part of the contain any funding limitation on ranch ownership structure and revision to the definition referenced by eligible branding and packaging demographic profile that indicates the the commenter. activities proposed as part of an owner(s)’ membership in a socially Comment: One commenter states that otherwise eligible project. disadvantaged group that has been proposed § 4284.922(d)(2)(ii) requires Reserved Funds Eligibility (Proposed subjected to racial, ethnic or gender applicants to ‘‘describe at least two § 4284.922(d)) prejudice; including identifying the alliances, linkages or partnerships’’, total number of owners of the applicant whereas proposed § 4284.922(d)(2)(iv) Comment: One commenter organization, as well as the number of requires the applicant to document that recommends revising proposed owners that identify themselves as a they have ‘‘obtained at least one § 4284.922(d) by adding ‘‘if applicants SDFR; along with a self-certification agreement with another member of the choose to compete for reserved funds’’ statement from the individual owner(s) supply network.’’ The commenter asks: for clarification and to record evidencing their membership in said Are alliances materially different from documentation standards to read as socially disadvantaged group. At least agreements? Thus, is it one or two follows: 51 percent of the farmer or rancher alliances? Do two alliances only apply In addition to the requirements owners must be members of the socially to applicants that are Independent specified in paragraphs (a) through (c) of disadvantaged group. Producers? this section, the requirements specified Response: For the purposes of in paragraphs (d)(1) and (2) of this Response: The Agency agrees with the § 4284.922(d)(2)(ii), alliances are section must be met, as applicable, if suggested revisions and has revised the different from agreements. An alliance applicants choose to compete for rule as suggested by the commenter is a relationship or strategic partnership reserved funds. All eligible, but except for the suggested text that 51 in the chain that may or may not unfunded reserved funds applications percent of the owners must be members include a formal written commitment. will be eligible to compete for general of socially-disadvantaged groups. An ‘‘agreement’’ is a written funds in that same fiscal year, as Instead, the Agency is requiring that, for commitment in the form of a contract or funding levels permit. reserved funding, 100 percent of owners letter of intent. Response: The Agency agrees with the must be members of socially- In addition to the other requirements suggested revision and has revised the disadvantaged groups. This requirement described in § 4284.922(d)(2), the rule accordingly (see § 4284.922(c)). is set by statute. application must describe ‘‘at least two

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alliances, linkages, or partnerships, plus profitability and competitiveness of at particularly to small producers who, if one agreement.’’ This is a requirement of least two, eligible, small or medium- they have a promising value-added all applicant types, not just Independent sized farms or ranches that are product, must quickly outstrip their Producers. structured as a family farm, including own agricultural production levels. In Comment: One commenter states that documentation to confirm that the Oregon, for example, the commenter the reserved funds eligibility section participating small or medium-sized stated that we have again and again seen (proposed § 4284.922(d)(2)(ii)) would be farms are structured as a family farm bona fide farmers with exciting value- improved by allowing linkages with and meet these program definitions. A added products disqualified by this ‘‘other independent producers’’ such description of the two farms or ranches rule. In order for a farmer to justify that this paragraph would read as confirming they meet the Family Farm capital costs to produce a value-added follows: requirements, and IRS income tax forms product, they need commodity in (d)(2)(ii) Describe at least two evidencing eligible farm income is volume, and thus they turn to alliances, linkages or partnerships sufficient; neighboring farmers to supplement their within the value chain that link Response: The Agency agrees with the own crops. To limit VAPG to producers independent producers with other suggested revision and has revised the growing 50 percent or more of the independent producers or with paragraph as suggested by the commodity as we currently do, too often businesses and cooperatives that market commenter. mean limiting VAPG’s assistance for value-added agricultural products in a Comment: One commenter unviable, undercapitalized enterprises. manner that benefits small or medium- recommends spelling out Instead, the rule could retain its sized farms and ranches that are documentation requirements and purpose—to assure that VAPG structured as a family farm, including expectations for applicant awareness assistance goes to producers and not the names of the parties and the nature and uniformity in implementation in processors—by reducing the of their collaboration; proposed § 4284.922(d)(2)(iv). The requirement and only insisting that the Response: The Agency disagrees as commenter recommends that this producer raise 10 percent or more of the this portion of the eligibility paragraph read as follows: commodity to which value is added. requirement is based on the statutory (iv) Document that the eligible Response: The Agency disagrees. definition of Mid-Tier Value Chain. agricultural producer group/ Applicants have a number of options to Comment: One commenter cooperative/majority-controlled form entities with other producers prior recommends expanding ‘‘mid-tier value producer-based business applicant to application, which would allow them chain’’ projects to include those that organization has obtained at least one to aggregate necessary product volume market farm-sited renewable energy agreement with another member of the for a project. products. There is a recognizable, but supply network that is engaged in the Eligible Uses of Grant and Matching undervalued niche to farmer-owned value-chain on a marketing strategy; or Funds (§ 4284.923) wind generation. that the eligible independent producer Response: The Agency disagrees with applicant has obtained at least one Comment: One commenter states that the commenter’s recommendation. The agreement from an eligible agricultural there needs to be some investigation of project eligibility category related to producer group/cooperative/majority- these grants beyond believing what is renewable energy was set by the 2008 controlled producer-based business written. The commenter states that Farm Bill and states that a Value-Added engaged in the value-chain on a recent grants to this area are ‘‘sinful’’ and Agricultural Product is ‘‘a source of marketing strategy. contends that giving money for farm- or ranch-based renewable energy, For Planning grants, agreements may unneeded research to millionaires including E–85 fuel’’. The Agency’s include letters of commitment or intent makes no sense. Example one was given position is that wind is not an to partner on marketing, distribution or a few years ago to research feasibility of agricultural commodity or a Value- processing; and should include the making/selling hard cider. The Added agricultural product. Thus, the names of the parties with a description commenter states that a State university Agency has not revised the rule as of the nature of their collaboration. For had already done a study and that there suggested by the commenter. Working Capital grants, demonstration were existing cider makers in that State. Comment: One commenter of the actual existence of the executed A new grant for $150K was just given recommends adding a new category of agreements is required. to an applicant and the commenter funding for ‘‘locally-produced Note that Independent Producer expressed views about the use of funds agricultural-sited energy projects’’; applicants must provide documentation in previously conducted studies. similar to the new category ‘‘locally- to confirm that the non-applicant APG/ Response: The Agency disagrees. produced agricultural food products’’. Coop/MAJ partnering entity meets Grants are made to eligible producers of Response: The Agency disagrees with program eligibility definitions, except all sizes, including small farmers. Funds the commenter’s recommendation. The that, in this context, the partnering for planning purposes are intended to project eligibility category related to entity does not need to supply any of evaluate feasibility at the individual renewable energy is prescribed by the raw agricultural commodity for the enterprise level, which precludes the statute. project. use of studies performed for other Comment: One commenter Response: The Agency agrees with the businesses. recommends spelling out suggested revisions and has revised the Comment: One commenter documentation requirements and rule as suggested by the commenter. recommends clarifying the language as expectations for applicant awareness Comment: In referring to proposed to whether stand-alone marketing and uniformity in implementation in § 4284.922(d)(2)(v), one commenter programs (completely independent from proposed § 4284.922(d)(2)(iii). The states that the proposed rule continues the processing) are eligible. The commenter recommends that this the requirement that the applicant be commenter also recommended more paragraph read as follows: the producer of the majority of the clearly defining the term ‘‘branding.’’ (iii) Demonstrate how the project, due commodity to which value is added. Response: As noted in a response to to the manner in which the value-added According to the commenter, this is a previous comments, the Agency product is marketed, will increase the very unrealistic requirement, recognizes that branding and packaging

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are important components of value- time they invest in the work accepted as kind matching credit for producer added marketing strategies and, subject an eligible in-kind match for a grant. participation in the development of to the satisfaction of all other eligibility The statute clearly states that grants business and marketing plans, but also criteria, the rule no longer has any will be awarded to: An eligible extend the same treatment to feasibility funding limitation on the uses of grant independent producer (as determined studies. and matching funds for these activities. by the Secretary) of a value-added The 2009 VAPG NOFA for the first agricultural product to assist the time explicitly excluded farmer and Planning Funds (§ 4284.923(a)) producer ‘‘(i) in developing a business rancher time as an allowable in-kind Comment: Numerous commenters plan for viable marketing opportunities contribution for planning grants, recommend keeping the business and for the value-added agricultural product substantially reducing the number of enterprise planning of VAPG projects ; or (ii) in developing strategies that are applicants that had the means to apply farmer-centered. The proposed rule intended to create marketing and reversing almost a decade of includes conflicting provisions on this opportunities for the producer’’. (7 understanding in the field of how the matter. U.S.C. 1621 (b)(1)(A)) VAPG grant works. This was a serious Helpfully, it says farmers may count Preserving this producer-centered mistake that would do severe damage to their time spent on development of approach to grants is fundamental to the program if left uncorrected. business and marketing plans as an in- VAPG’s success. Our member VAPG grants are at their core kind contribution for purposes of organizations that have been engaged in producer grants for entrepreneurial matching funds. Yet the rule also education and technical assistance on producer-based projects. It is vital that includes conflict of interest rules and VAPG grants believe that successful producers be able to contribute their several program definitions that seem to value-added projects are the result of a sweat equity to building and launching prohibit active participation by the profound understanding of the their project. Participation by producer in project development and complexities of farming businesses that consultants and outside experts can also planning. This undermines the can only be provided by the farmers and be very important. But the program fundamental principle of the VAPG ranchers who will be participating in should not ever be viewed primarily as program: That farmers and ranchers the enterprise. Conversely, projects that a grant program that passes funding should be empowered through these fail most often do so because they did through farmers and ranchers to paid grants to explore creative new not incorporate the insights and outside consultants. Such a view is businesses that will increase farm experience of the producers the contrary to law and contrary to the income and create rural wealth. USDA business will rely on for its success. intent of Congress in designing the should ensure that the final rule is Response: The Agency recognizes the program. totally consistent on this point—farmers value of producer participation in In addition to providing grant funds and ranchers should directly participate Planning activities, at the same time to pay for the time of the applicant or in the development of VAPG projects acknowledging that an unbiased, third the applicant’s family members in the and be allowed to count their time as a party is necessary for the evaluative project, it is also critical that producers contribution toward the program’s portions of these activities. Therefore, be able to choose to contribute in-kind matching requirements. the Agency will retain its requirement services as part of their matching Response: The Agency recognizes the that feasibility studies be performed by requirements. If they were not allowed necessity and benefit of direct independent third-parties with the only to do so, it would tilt the program to participation of farmers and ranchers in limitation on applicant involvement only the well-off, those with access to project development and planning. The being the provision a § 4284.923 that sufficient capital to fully fund their Agency also recognizes the necessity of allows applicants to claim time on match requirements. Such a result independent, third party analysis of Planning grants as in-kind match would contradict the very reason for the project feasibility. Therefore, the amounting to up to 25 percent of total program’s existence. Agency will allow applicants to project costs, provided that a realistic The commenter strongly supports the participate in the direction and data and relevant valuation of their time can provision at § 4284.923(a) and urges that collection of the analysis and allow be documented. it be retained, but also strengthened, in contribution of time valued at up to 25 Comment: One commenter the final rule. The final rule on this percent of total project costs as in-kind recommends emphasizing the point should be strengthened in two match. The applicant must be able to importance of the marketing element of ways. First, the proposed rule’s document the valuation of time the VAPG Marketing Grant. Having the preamble refers appropriately to both contributed. funds to come out of the gate with a the applicant and the applicant’s family. Comment: One commenter states that great marketing plan is imperative The sentence in § 4284.923(a), however, elements of the proposed rule that particularly when you are involved in a refers only to the applicant and does not contradict the statute and the statement competitive industry such as wine mention the applicant’s family. This in § 4284.923(a) providing for in-kind production. The commenter attached oversight should be fixed by adding a matching for participation in one of their labels where marketing has specific reference to the applicant’s development of business and marketing been key to its success which has family, to match the clear intent as plans should be corrected so the rule as contributed to the early success and rendered in the preamble. a whole is consistent and clear and does profitability of this particular wine. Second, the major element that is still not lead to arbitrary implementation Response: The Agency agrees with the missing from this provision in decisions. The commenter is concerned commenter’s suggestion to emphasize § 4284.923(a) is an allowance for that a variety of sections in the proposed the marketing element of the program producer participation in planning rule contradict, or at the very least and has revised the rule to remove grants and for in-kind producer confuse, the otherwise clear directive in limitations on funding of branding and matching contributions in the the proposed rule that farmers and packaging activities. development of a value-added business ranchers are encouraged to write or help Comment: One commenter states that, feasibility study. The statute is write business and marketing plans for as in the proposed rule, the final rule reasonably clear on this matter: A their proposed projects and have the should allow for grant payment and in- grantee under paragraph (1) shall use

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the grant—(A) to develop a business Response: The Agency recognizes the independent third-parties. Applicants plan or perform a feasibility study to value of producer participation in (and applicant family members, as establish a viable marketing opportunity Planning activities, at the same time necessary) are encouraged to participate for a value-added agricultural product; acknowledging that an unbiased, third in the non-evaluative portions of the (7 U.S.C. 1621(b)(3)(A)). party is necessary for the evaluative study and may contribute time as in- The statute provides that producers portions of these activities. Therefore, kind match amounting to up to 25 may perform feasibility studies as part the Agency will retain its requirement percent of total project cost, provided of planning grants. If a producer that feasibility studies be performed by that a realistic and relevant valuation of receiving an award can use the grant to independent third-parties. Applicants their time can be documented. themselves perform a feasibility study (and applicant family members, as Comment: One commenter then certainly they should also be able necessary) are encouraged to participate recommends revising § 4284.923(a) to to count portions of their time working in the non-evaluative portions of the reflect more recent RBS determinations on a feasibility study as an in-kind study and may contribute time as in- to allow limited applicant and family match. kind match amounting to up to 25 member in-kind contributions for Feasibility studies can be conducted percent of total project cost, provided planning grant match purposes, and to by a qualified consultant, and in many that a realistic and relevant valuation of establish implementation parameters to cases should be, but with input and their time can be documented. The balance applicant in-kind contributions contributions from the producer(s). The Agency considers the use of grant funds with federal conflict of interest law. The commenter notes that marketing and for direct personal financial gain to be Agency may consider limiting this business plans are critical components a conflict of interest and will continue conflict of interest exception for for the feasibility study and the to prohibit use of grant funds to pay planning grants only to applicants that proposed rule in § 4284.923(a) already applicant/applicant family member are ‘‘Small-Farms structured as a Family allows producers and their families to salaries. Farm’’; ‘‘to 10 percent of total project count their marketing and business plan Comment: One commenter believes costs for planning grants’’; or ‘‘for all development time as part of their in- planning grants should allow for planning grant applicants that seek kind match. It would be logically producer involvement in feasibility grant amounts of $50,000 or less as part ’’ inconsistent to say they can count time studies, and for them to count their time of a simplified grant request. conflict of toward the two critical components of as in-kind match. The proposed rule interest and applicant in-kind makes progress in this area by contribution issues have been highly the feasibility study, but not the recognizing the importance of their problematic in the past, and account for feasibility study per se. Moreover, involvement in business and marketing a large percentage of applications consultants will be relying on the planning, but is still lacking regarding submitted but deemed ineligible due to producer(s) to supply much of the feasibility studies. Working with many conflict of interest. Federal procurement additional information that will provide farmers and ranchers over the years, standards prohibit transactions with a the basic background and parameters of their involvement in all aspects real or apparent conflict of interest, the feasibility study without which they ‘‘feasibility studies, business planning including owner and family member in- cannot proceed. For these reasons, the and marketing planning’’ was absolutely kind contributions. If an exception is commenter recommends adding an key to successful projects. Through the allowed as above, the regulation must be explicit reference to feasibility studies feasibility studies they have helped with clear as to what is and is not acceptable to § 4284.923(a). in the past, the farmers or ranchers have in order to mitigate this issue going To address both of these issues— assisted with surveys, product testing, forward. family members and feasibility data collection, and many other Response: The Agency recognizes the studies—the commenter recommends activities. This work was critical for value of producer participation in modifying § 4284.923(a) as follows: compiling the feasibility study. Planning activities, at the same time (a) Planning funds may be used by Also, all of the farmers and ranchers acknowledging that an unbiased, third applicants for the costs associated with they were seeking to assist during the party is necessary for the evaluative conducting and developing a feasibility 2009 VAPG round dropped out because portions of these activities. Therefore, study, business plan, and/or marketing they were not able to count their time the Agency will retain its requirement plan associated with the processing as in-kind match for these activities. To that feasibility studies be performed by and/or marketing of a value-added ensure this program serves the folks it independent third-parties. Applicants product, including costs required to pay is designed to make a priority (small (and applicant family members, as for a qualified consultant to conduct and mid-size family farmers and necessary) are encouraged to participate and develop a feasibility study, business ranchers) the in-kind contribution in in the non-evaluative portions of the plan, and/or marketing plan associated this regard must be fixed and their study and may contribute time as in- with the processing and/or marketing of involvement in feasibility studies must kind match amounting to up to 25 a value-added product. In-kind be allowed to be counted as in-kind percent of total project cost, provided contribution of matching funds to cover contributions. In the absence of such that a realistic and relevant valuation of applicant or family members of the they will only stand to serve the well- their time can be documented. In applicant participation in development healed who do not need the assistance addition, applicants for Working Capital of feasibility studies, business plans in order to launch a value-added grants may also contribute their time on and/or marketing plans is allowed to the business. eligible working capital tasks as in-kind extent that the value of such work can Response: The Agency recognizes the match amounting to up to 25 percent of be appropriately valued. Funds may not value of producer participation in total project cost, provided that a be used to evaluate the agricultural Planning activities, at the same time realistic and relevant valuation of their production of the commodity itself, acknowledging that an unbiased, third time can be documented. other than to determine the project’s party is necessary for the evaluative input costs related to the feasibility of portions of these activities. Therefore, Working Capital Funds (§ 4284.923(b)) processing and marketing the value- the Agency will retain its requirement Comment: One commenter asks if this added product. that feasibility studies be performed by is a new clause (exclusion of grant funds

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for an owner’s salary for eligible family member salaries. However, the matching funds, but are not an eligible activities) or has this always been the Agency recognizes the value of producer use of grant funds. Section case? Are owners able to use time spent participation in Planning activities, as 4284.931(b)(4)(i) of the rule states: processing and/or marketing and well as the necessity of participating in ‘‘Matching funds are subject to the same delivering the value-added product as eligible marketing activities. Therefore, use restrictions as grant funds,’’ but this an in-kind match? The commenter both Planning and Working Capital has not been the practice. For example, believes eligible grant activities should applicants (and applicant family the rule should clearly state if qualify to receive federal funds or to be members, as necessary) may contribute applicants are allowed to contribute used for match (cash and in-kind) to the time spent on eligible activities as in- inventory they have produced as a greatest extent possible—the only kind match amounting to up to 25 match, but cannot use grant funds to possible exception would be applicant percent of total project cost, provided purchase the same inventory from time spent on the feasibility study. that a realistic and relevant valuation of themselves. Response: The Agency considers the their time can be documented, as Response: The Agency agrees and has use of grant funds for direct personal provided for at § 4284.923. provided clarification and additional financial gain to be a conflict of interest Comment: One commenter states that, examples at §§ 4284.923 and 4284.924. and will continue to prohibit use of for stand-alone marketing programs, However, it is unrealistic to anticipate grant funds to pay applicant/applicant which do not lend themselves to and list every possible example and, family member salaries. However, the creating feasibility or business plans, a therefore, the Agency must have the Agency recognizes the value of producer marketing plan with clear results should ability to exercise discretion. participation in Planning activities, as be sufficient. Comment: One commenter states that, well as the necessity of participating in Response: If the commenter use of as a small producer, he believes that eligible marketing activities. Therefore, ‘‘stand-alone marketing programs’’ refers eliminating the ability of a producer to both Planning and Working Capital to applicants already producing a value- use in kind options to help match grant applicants (and applicant family added product, but desiring to expand funds would disadvantage many lower members, as necessary) may contribute their market, the Agency agrees that a income participants. Driving the grant/ time spent on eligible activities as in- feasibility study is unnecessary. research sector into the hands of kind match amounting to up to 25 However, the Agency disagrees that a corporate, state, and entities other than percent of total project cost, provided business plan is unnecessary. The small farmers is obviously not in the that a realistic and relevant valuation of Agency has revised the rule to allow spirit of the program, and the their time can be documented, as Independent Producer applicants commenter states that this direction provided for at § 4284.923. requesting $50,000 or more who can would be a move towards much more Comment: One commenter demonstrate that they are proposing severe conflicts of interest between the recommends expanding § 4284.923(b) to market expansion for existing value- reciprocation of officials between allow the payment of salaries to owners/ added products to submit a business or government agencies and corporations. family members of the value-added marketing plan in lieu of a feasibility The commenter believes these grant venture. The VAPG primary objective, study (see § 4284.922(b)(5)(i)). funds are best spent with our local as defined in this proposed rule, is to Comment: One commenter states that producers, not on what the commenter help the independent producer of the working capital paragraph at perceives of as wasteful university agricultural commodities increase the § 4284.923(b) needs to clarify that grant research, and contends that local producer’s income as the end goal. The payment of salaries, etc. to not only producers are more efficient at commenter believes that it is ownership, but also ‘‘immediate family disposing of funds than almost any counterintuitive to say that paying an interests’’ constitutes a conflict of other type of researchers. owner or family members to run their interest and is prohibited. Response: The Agency recognizes the business is a conflict of interest. The Response: The Agency agrees with the value of producer participation in commenter understands that and agrees commenter and has revised the rule planning activities, at the same time that the amount paid has to be accordingly. acknowledging that an unbiased, third reasonable and has to be commensurate party is necessary for the evaluative with the duties preformed. Ineligible Uses of Grant and Matching portions of these activities to assist the To say that it is an eligible cost to pay Funds (§ 4284.924) Agency determining the merits of a someone else to run their business but Comment: Four commenters state that particular applicant’s planned activities. that it is not an eligible cost to pay this section should clearly state which Therefore, the Agency will retain its themselves a reasonable wage to run uses of funds are ineligible. For requirement that feasibility studies be their business does not make sense. The example, the rule should clearly state performed by independent third-parties. commenter asks the Agency to consider applicants are not allowed to use grant Applicants (and applicant family making this change to 7 CFR parts 4284 funds for owner salaries. It is members, as necessary) are encouraged and 1951. If not, then the rule needs to unnecessarily confusing to imply such to participate in the non-evaluative be stated such that this is not an expenses are ineligible because they are portions of the study and may allowable expense and needs to be a conflict of interest. contribute time as in-kind match specifically listed in § 4284.924. Response: The Agency agrees with the amounting to up to 25 percent of total Response: The purpose of the commenter and has revised this section project cost, provided that a realistic program, as given in § 4284.901, is to accordingly. In addition, the Agency and relevant valuation of their time can ‘‘enable viable agricultural producers to notes that the rule now clearly states be documented. develop businesses that produce and that applicants are not allowed to use Comment: One commenter market value-added agricultural grant funds for either owner salaries or recommends allowing applicants to be products.’’ The Agency considers the for immediate family member salaries paid for professional services, as eligible use of grant funds for direct personal (see § 4284.924(n)). project costs. financial gain to be a conflict of interest Comment: Several commenters state Response: The Agency considers the and will continue to prohibit use of that this section should clearly state if use of grant funds for direct personal grant funds to pay applicant/applicant some uses of funds are eligible as financial gain to be a conflict of interest

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and will continue to prohibit use of both Planning and Working Capital Comment: One commenter believes grant funds to pay applicant/applicant applicants (and applicant family that matching funds should be allowed family member salaries. However, the members, as necessary) may contribute from the date of the NOFA because Agency recognizes the value of producer time spent on eligible activities as in- many expenses are incurred to start the participation in Planning activities, as kind match amounting to up to 25 project during the application period well as the necessity of participating in percent of total project cost, provided and time prior to the funding of the eligible marketing activities. Therefore, that a realistic and relevant valuation of grants. Many of the projects are both Planning and Working Capital their time can be documented, as incurring legal and accounting expenses applicants (and applicant family provided for at 4284.923. to get prepared if the VAPG is funded. members, as necessary) may contribute Comment: One commenter states that If they do not incur these expenses then time spent on eligible activities as in- this section needs to be revised to they are not prepared to start the kind match amounting to up to 25 connect conflict of interest issues with projects as soon as they are awarded. If percent of total project cost, provided procurement transactions, to illustrate these expenses are not allowed, then the that a realistic and relevant valuation of conflict of interest for owners and project has to stop and wait for the their time can be documented, as family members, and to clarify what is announcement date which can be provided for at § 4284.923. not an eligible use of funds. delayed for months. Comment: One commenter states that, Response: The Agency agrees and has Response: Prohibitions on incurring with regard to ineligible matching revised rule text at §§ 4284.923 and reimbursable costs prior to grant funds—donated services that are also 4284.924, and in the definition of approval is standard procedure under paid for with VAPG funds—if a Conflict of Interest. Federal grant administrative guidelines. Comment: One commenter states that consultant or other party will receive This protects applicants—especially this section should make clear that the cash payments from the VAPG project, small applicants of limited means— identity of independent producers may a conflict of interest exists as to the from incurring costs for a project that be by name or class, but still prohibit donation of their services. For instance, might not be completed if they did not industry-wide templates. a consultant should not be able to set a receive a grant. high price for their services and then Response: The Agency agrees with the ‘‘donate’’ some of that price as match. suggestion and has revised proposed Pay for Any Goods or Services Provided This should be expressly prohibited. § 4284.924(k) (now § 4284.924(m) in the by a Person or Entity That Has a Response: The Agency does not agree interim rule) as suggested by the Conflict of Interest or an Appearance of that a change to the rule is necessary commenter in order to balance the a Conflict of Interest (Proposed because it would limit the ability of interests of applicants ease of § 4284.924(p)) smaller applicants to utilize the services application with the Agency’s need to Comment: Two commenters state that of consultants. identify applicant owners. Comment: One commenter states that, proposed § 4284.924(p) is in conflict Pay Any Costs of the Project Incurred with regard to ineligible matching with the provision at § 4284.923(a). The Prior to the Date of Grant Approval funds—commodity, the existence of a emphasis on conflict of interest or an (Proposed § 4284.924(m)) crop is a necessary precondition of any appearance of conflict of interest is value-adding activity. Thus, growers Comment: One commenter states that misplaced in reference to in-kind should not be able to assert the value of the proposed rule restricts the use of matching funds. All matching the commodities they raise as part of grant and matching funds for any costs contributions must be verifiable and the their match. incurred prior to the date of grant time, or ‘‘sweat equity’’, that farmers, Response: The Agency disagrees with approval. It would be beneficial for the ranchers and/or their families invest to the comment and will continue to allow applicants if they could start their design and develop these value-added applicants to contribute commodity project after the application is enterprises are necessary to their inventory as in-kind, as appropriate submitted. This should be changed to success, as the rule otherwise provides because the practice is not prohibited any cost incurred prior to the in § 4284.923(a). under uniform administrative application submission. Other Agency One of the commenters states it would requirements regarding cost-sharing. programs such as the REAP and B&I be worthwhile to delete the definition Comment: One commenter states that programs, allow the start of the project for conflict of interest entirely or the conflict of interest requirement in prior to the award approval. This has redefine it with specific examples and/ the proposed rule is suggestive, but been successful as long as the applicant or exclusions. The other commenter bears some elaboration to prevent abuse. is aware that they may not receive the recommends deleting the second No owner should be able to pledge their grant. Many of the value-added products sentence, to read as follows: (p) Pay for assistance as valid ‘‘in kind’’ match; their are created in a sensitive timeframe any goods or services provided by a compensation for their efforts on a dependant on the commodity’s growing person or entity that has a conflict of project is the potential increased profit season. Often the growing season is in interest or an appearance of conflict of they expect to realize. If they are not conflict with the grant’s timeframes. interest. convinced of such a return, they should Response: Prohibitions on incurring One commenter states he was recently not be undertaking the project. reimbursable costs prior to grant notified that he received a working Response: The Agency agrees that the approval is standard procedure under capital VAPG and this would have use of grant funds for direct personal Federal grant administrative guidelines. never been possible if he were not financial gain is a conflict of interest This protects applicants—especially allowed to contribute in-kind match for and will continue to prohibit use of small applicants of limited means— his time to develop the business plan grant funds to pay applicant/applicant from incurring costs for a project that and feasibility study. The commenter family member salaries. However, the might not be completed if they did not asks USDA to please consider removing Agency recognizes the value of producer receive a grant. In addition, timeframes the conflict of interest clause, because, participation in Planning activities, as of up to 36 months are allowed and the commenter believes, it hinders small well as the necessity of participating in could be tailored to accommodate producers and businesses from applying eligible marketing activities. Therefore, growing seasons. because they cannot meet the match

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requirements without being able to Comment: One commenter states that Two commenters state that the provide in-kind match. the mid-tier value chain (MTVC) aspect proposed rule does not reference a Response: The Agency has revised the of VAPG is highly specialized and the single, comprehensive form for the text at § 4284.924(a) to note the 10 percent set aside required for such applicant to complete in addressing the exceptions to the conflict of interest projects does not lend itself well to state required criteria. The proposed rule language allowing limited contributions allocations. Thus, unlike with regular should reference a standard form. The of applicant time to in-kind match. VAPG project, it makes sense to conduct majority of items applicants must address should be basic, check-the-box Funding Limitations (§ 4284.925) a single, nationwide competition for MTVC projects. certifications. Only a few, subjective Comment: One commenter suggests Response: The Agency agrees that items should call for a narrative that the maximum grant amount remain allocation of funds to States is counter statement and the form should provide at $300,000, not be increased to to statutory direction that the VAPG adequate space for most applicants to $500,000. program be a nationally competitive provide the information. Many Rural Response: The Agency agrees with the program. Development programs can be accessed commenter. The statute allows a by completing a comprehensive form Preliminary Review (§ 4284.930) maximum of $500,000 at Agency and the form is often referenced in the discretion. It is the Agency’s intention Comment: One commenter states that rule. The application process for the to retain the $300,000 maximum for primary eligibility determinations are VAPG program should be driven by a working capital grants. based on both applicant and project standard form, similar to Form RD Comment: Four commenters eligibility requirements. Therefore, the 4279–1. recommend that the final rule include a commenter recommends that the Response: The Agency understands reasonable standard to measure language in this section be revised to the concern for ease of the application significant benefit to beginning farmers. maintain consistency throughout the process and will consider these points Response: The statute has a 10 regulation. when developing application material. percent reserve to fund projects that Response: The Agency agrees with the Comment: One commenter benefit beginning farmers or ranchers or suggested revision and has added recommends adding Form RD 1940–20. socially disadvantaged farmers and reference to applicant eligibility in this Response: The Agency agrees with the ranchers as well as giving priority to section. recommendation and has added projects that contribute to increasing reference to Form RD 1940–20. Application Package (§ 4284.931) opportunities for beginning farmers or Comment: One commenter ranchers. The Agency will fully Comment: One commenter states that, recommends removing Form RD 400–1 implement the designations stipulated with regard to ideal application content, because it covers construction projects, in the statute. a much more preferable application which are ineligible for VAPG projects. Comment: One commenter requirement would consist of: (1) A Response: The Agency agrees with the recommends creating a 10 percent set- proposed Form RD 4284–1, VAPG commenter and has removed Form RD aside for farmer-owned community Application, with all of the requisite 400–1 as a requirement from the rule. wind projects, similar to the same for certifications pre-printed on the form; Comment: One commenter states that mid-tier value chain projects, or (2) a business plan; and perhaps (3) § 4284.931(a)(6) needs to be changed to beginning farmers and ranchers. current balance sheet (to reflect capacity remove the need for a DUNS number for Response: The Agency disagrees with to perform). A feasibility study could be an individual and sole proprietor to be the commenter’s recommendation. included working capital applications consistent with other Rural Reserved funds designations are when applicable (although it should not Development programs (i.e. REAP). The stipulated by statute. be required when non-emerging markets DUNS number is a number that is Comment: One commenter projects are proposed, as already designed for businesses. Individuals and recommends allocating the 10 percent discussed above). sole proprietors are eligible entities for set aside for beginning and socially Response: The Agency understands the VAPG program and a DUNS number disadvantaged farmers to the states the concern for ease of the application should not be required in these along with the regular VAPG state process and will consider these points circumstances. allocations with the understanding that when developing application material. Response: The DUNS requirement for those funds are exclusively designated all applicants for Federal assistance is Forms for such applicant categories. In the by OMB directive. event a state is unable to award at least Comment: One commenter notes that 10 percent of their state allocation to currently there are no forms available Application Content (§ 4284.931(b)) such categories, these funds should be for the customer to complete in Comment: One commenter states that pooled in a timely manner and made identifying the required criteria, and the 2009 VAPG rules required available to states with an excess of recommends using Form RD 4279–1, applicants to list their owners/members such applicants. This will ensure that Application for Loan Guarantee. by name and the owners of all their 10 percent or more of the funds awarded One commenter states that, regarding owners/members organized as any type go to these statutorily designated the application form, the SF–424, of legal entity other than as individuals. categories. Because these applicant Application for Federal Assistance, SF– According to the commenter, this poses types receive priority points as well, it 424A, Budget Information—Non- a significant problem for cooperatives, is very unlikely RD will have trouble Construction Programs, and SF–424B, agricultural trade associations, and awarding funds at the required level. Assurances—Non-Construction other applicants with multiple owners/ Response: The Agency disagrees with Programs, are generic forms poorly members that might be LLCs, the commenter’s recommendation. suited and confusing to farmers. The partnerships, corporations, etc. In many Allocation of funds to States is counter commenter recommends that Rural cases, the applicants did not have the to statutory direction that the VAPG Development develop a VAPG required information on the owners of program be a nationally competitive application form specifically designed their owners/members on file, and program. for the VAPG program. found it challenging or impossible to get

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it. Legal issues were also raised how applicants verify eligible matching application package, the applicant must regarding the release of such funds, especially with regard to provide authentic documentation from information in certain states, even if it applicant or family member in-kind the source to confirm the eligibility and were available. The commenter states contributions that meet to be availability of both cash and in-kind several potential applicants declined to documented requirements and contributions that meet the following apply in 2009 due to this requirement. limitations in § 4284.923(a), or non- requirements: The proposed rule is silent on the federal grant sources. (v) Matching funds must be provided matter, which presumably means that Response: The Agency agrees with the in the form of confirmed applicant cash, the requirement has been dropped, and commenter and will provide guidance loan, or line of credit, and may include the commenter hopes this is the case. in the application package on payment for the time of the applicant/ Response: The Agency agrees and has verification of matching funds. producer or the applicant producer’s revised the definitions of Farmer or Comment: One commenter believes family members to the extent that the Rancher Cooperative, Agricultural that the narrative requirement of VAPG value of such work can be appropriately Producer Group, Independent applications is excessive and valued; or confirmed third-party cash or Producers, and Majority Controlled burdensome to the farmer. The eligible third-party in-kind contribution. Producer-Based Business Ventures to commenter recommends that it be (vi) Examples of ineligible matching indicate that entities may list owner/ replaced by succinct sections of the funds include funds used for an members by name or by class. recommended Form RD 4284–1, asking ineligible purpose, contributions for what is specifically needed and no donated outside the proposed grant Eligibility Discussion (§ 4284.931(b)(2)) more. Farmers should not be expected period, third-party or applicant in-kind Comment: One commenter to enter into a writing contest to receive contributions that are over-valued, recommends deleting ‘‘using the format VAPG assistance. Doing so turns this expected program income at time of prescribed by the application package,’’ program into a benefit for grant-writers application or instances where the in § 4284.931(b)(2) through (4), and and not farmers. potential for a conflict of interest exists. rewording so the regulation is not Response: The Agency agrees with the Response: The Agency has considered dependent upon an Agency package, but commenter and is developing a the commenter’s suggested revisions so the regulation with notifications cited comprehensive application package, and agrees that revision to these two comprise the format for the application. which will provide forms and templates paragraphs is needed. Therefore, the Response: The Agency disagrees with that encourage succinct responses. Agency has revised the elements in the proposed change as its intention is § 4284.931(b)(4)(v) and (vi) to be Certification of Matching Funds consistent with the Agency’s intention to provide a comprehensive application (§ 4284.931(b)(3)) package to convey format details. All to allow specified and limited applicant sustentative requirements which are Comment: One commenter in-kind contributions for a portion of reflected in the application are recommends replacing the requirement the project’s matching funds for contained in the regulation. for multiple certifications on matching planning and working capital grants, Comment: One commenter funds, etc., by a simple preprinted and to be consistent with §§ 4284.902, recommends breaking out applicant and certification on a Form RD 4284–1. 4284.923(a) and (b), and 4284.924. project eligibility as § 4284.931(b)(1)(i) Response: The Agency agrees that Comment: One commenter states that and (ii) respectively—they are two multiple certifications can be addressed the requirement for verification of distinct eligibility components. at one place in the application. matching funds at the time of Response: The Agency agrees with the Verification of Cost-share Matching application is burdensome and commenter and has revised the rule as Funds (§ 4284.931(b)(4)) unnecessary. The farmer should not be suggested. expected to have funds on hand or Comment: One commenter states that committed and then tied up for months Evaluation Criteria (§ 4284.931(b)(2)) § 4284.931(b)(4)(v) and (vi) represent a while RD reviews the applications. Comment: One commenter third operational provision of the There is no harm done if the farmer recommends that the performance proposed rule in conflict with the proves ultimately unable to raise evaluation criteria indicate that allowance provided in § 4284.923(a). matching funds because if the farmer applicant or Agency requested Although the proposed rule in fails to do so, then no VAPG funds are performance criteria will be § 4284.923(a) states that applicant going to be disbursed. So why require incorporated into applicant reporting producer’s time is an acceptable in-kind funds to be tied up so far in advance of requirements and give examples, as contribution, these two provisions each the project’s uncertain selection and these elements will be detailed in the contradict that statement. Omitting start date? grant agreement or letter of condition. mention of applicant time or other in- Response: The Agency acknowledges Response: The Agency agrees with the kind match in paragraphs (b)(4)(v) and the commenter’s concern and will commenter and has revised the rule as (vi), while including a specific reference provide guidance in the instructions to suggested. Additional instruction will to eligible third-party contributions the rule to balance flexibility regarding be provided in the annual notice of implies that the only kind of match that verification requirements with the need funding availability. applicants can provide are in the form for ascertaining and documenting Comment: One commenter of cash. The commenter also states that applicant commitment. recommends that the Agency indicate § 4284.931(4)(vi) unnecessarily raises Comment: One commenter wants to that the proposal evaluation criteria are the specter of rejecting the in-kind know how conflict of interest applies to applicable to both planning and contributions of producers permitted by allowable applicant in-kind match for working capital applicants. § 4284.923(a) by cross-reference to the the development of business plans and/ Response: The Agency agrees with the conflict of interest definition. The or marketing plans. commenter and has revised the rule as commenter recommends these Response: The allowance of limited suggested. paragraphs be rewritten as follows: contributions of applicant time to both Comment: One commenter Verification of cost-share matching. Planning and Working Capital grants is recommends that the Agency clarify Using the format prescribed by the an exception to the Agency’s conflict of

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interest policy and is noted in revised National Office should provide clear and serves only as a barrier in text in §§ 4284.923 and 4284.924. guidance to allow for a standardized instances where the VAPG project is not Comment: Three commenters state review process around the country. The for an emerging market. An independent that the proposed rule is conflicting on review process must consider two producer who has a track record of the eligibility of applicant, in-kind competing issues. First, the process producing a value-added product matching funds. Nothing in this section must be simple enough to allow the should not be required to undertake the allows for applicant in-kind matching Agency to complete the review in a time and expense of a feasibility study funds. Specifically, § 4284.931(b)(4)(v) timely manner. Second, the review when their proven history supports lists the eligible forms of matching process must be flexible enough to their business plan. The commenter funds and does not include applicant, accommodate business plans and states that, in such cases, feasibility in-kind matching funds. This is contrary feasibility studies written for ventures studies should be optional and if to § 4284.923(a), which allows for in a variety of different industries. completed and their content is applicant, in-kind matching funds for Response: The Agency agrees with the persuasive, it could result in greater planning grants under qualified commenter and will develop guidance priority being assigned to such projects. circumstances. The proposed rule for State Office review of feasibility Response: The Agency generally should be clearer on the eligibility of studies and business plans. agrees and will require only a business applicant, in-kind matching funds. Comment: One commenter states that or marketing plan rather than a One commenter states that applicant a standardized review process is needed feasibility study for Independent in-kind as an eligible match (for the for every state. It must be simple and Producer applicants requesting $50,000 development of business plans and/or timely and flexible to accommodate or more in working capital funds and marketing plans) is not included. business plans and feasibility studies proposing market expansion for existing Response: The Agency agrees with the written for ventures in a variety of value-added products. commenters concerning the conflicting different industries. Not everyone is Simplified Application (§ 4284.932) nature of the proposed rule. Therefore, making wine out of grapes. the Agency has revised the elements in Response: The Agency agrees with the Comment: Four commenters § 4284.931(b)(4)(v) and (vi) to be commenter and will develop guidance recommend including a description of consistent with the Agency’s intention for State Office review of feasibility the simplified application process in the to allow specified and limited applicant studies and business plans. rule for two reasons. First, the in-kind contributions for a portion of Comment: One commenter suggests simplified application process should the project’s matching funds for the requirement for a feasibility study be be included in the rule, as opposed to planning and working capital grants and waived in the case of an individual the annual NOSA. Applicants want to to be consistent with §§ 4284.902, producer who has been successfully prepare applications packages as early 4284.923(a) and (b), and 4284.924. operating for six years and beyond. as possible to elevate the burden of a Response: The Agency has revised the narrow timeline between program Business Plan (§ 4284.931(b)(5)) rule for Independent Producer announcement and application Comment: Three commenters state applicants proposing market expansion deadline. Second, the simplified that the proposed rule requires all for existing value-added products to application process should be an working capital applications to include require only a business or marketing abbreviated version of a standard form a copy of the business plan and a third- plan, rather than a feasibility study, to compete for program funds. The form party feasibility study completed for the provided the applicant has produced should be similar to Form RD 4279–1A, proposed project. The Agency is and marketed the value-added product ‘‘Application for Loan Guarantee— required to concur in the acceptability for at least two years. Business and Industry Short Form.’’ or adequacy of these documents. The Comment: One commenter states that Response: The Agency understands National Office should provide the issuance of a new VAPG regulation the concern for ease of the application guidance to allow for a standardized could greatly encourage the strategy of process and will consider these points review process around the country. The promoting local and regional foods as an when developing application material. review process must consider two important rural development by Comment: Two commenters believe competing issues. First, the process recognizing local foods as a valid value- the Agency should create a simplified must be simple enough to allow the adding strategy and thus exempting this application for grants of less than Agency to complete the review in a strategy from any feasibility study $50,000. One of the commenters states timely manner. Second, the review requirement regardless of whether the that the 2008 Farm Bill explicitly calls process must be flexible enough to producer has a history of participating on Rural Development to offer a accommodate business plans and in local foods (i.e., regardless of whether simplified application for small grants feasibility studies written for ventures the local food strategy would be an of less than $50,000 as recognition that in a variety of different industries. ‘‘emerging market’’ opportunity for a the proposal process is so cumbersome Response: The Agency agrees with the given producer). The commenter states that many excellent, inexpensive commenter and will develop guidance that such a rule would greatly simplify projects do not get the support they for State Office review of feasibility the ability of farmers to apply for and deserve. The FY 2009 NOFA, however, studies and business plans. receive VAPG assistance to begin or did not offer a substantive improvement continue participate in farmers markets, in this regard, and the proposed rule Feasibility Study (§ 4284.931(b)(6)) etc. contains only a one sentence reference Comment: Two commenters state that The commenter further states that RD that says ‘‘Applicants requesting less the proposed rule requires all working has consistently and unrealistically than $50,000 will be allowed to submit capital applications to include a copy of required that all applications for a simplified application, the contents of the business plan and a third-party working capital grants be supported by which will be announced in an annual feasibility study completed for the a feasibility study. The value of such notice issued pursuant to § 4284.915.’’ proposed project. The Agency is studies may be important in many cases, This issue deserves serious attention required to concur in the acceptability such as when a project involves an and should be dealt with in the 2010 or adequacy of these documents. The ‘‘emerging market’’. Their value is less NOFA. Given the missed opportunity

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last year and the lack of any substantive Another commenter states that RBS Response: The Agency agrees with the proposal in the proposed rule, the will need to determine whether the recommendation and has revised the commenter suggests, if necessary, that March 15 annual application deadline is paragraph accordingly. Rural Development staff work with feasible or whether the submission Comment: One commenter states that other agencies, including AMS, FSA, deadline should be specified annually the operative provisions in the rule and NIFA, that currently use simplified with instructions added to § 4284.915. itself for the priority categories need to application forms in a variety of grant Response: The Agency disagrees that be significantly strengthened to make and loan programs, to adopt lessons a fixed annual application date is them actual priorities rather than minor learned about grants and loan necessary and has revised the rule text preferences. The commenter documents that are user-friendly for to remove the March 15 date to provide recommends that § 4284.942 be under-resourced groups but still provide flexibility to meet unforeseen strengthened as follows: necessary assurances of merit or credit circumstances. (b) Scoring applications. The worthiness. maximum number of points that will be The other commenter adds that the Processing Applications (§ 4284.940) awarded to an applicant is 100, plus an simplified application process should additional 10 points if the project is Comment: One commenter states that be an abbreviated version of the full located in a rural area. The criteria the requirement in § 4284.940(b) application similar to the B&I’s use of specified in paragraphs (b)(1) through requiring writing feedback to all Form RD 4279–1A for loans less than (7) of this section will be used to score applicants is probably either $600,000. For FY 09, the same each application. The Agency will unworkable because of its burden on application materials were required for specify how points are awarded for each employees faced with processing many both the simplified applicants and full criterion in a Notice published each applications or it will be not applicants; however the simplified fiscal year. applicants did not need to submit particularly meaningful because many (1) Nature of the proposed project certain information unless they were bland written responses will be given. (maximum 20 points). funded. So essentially the same The commenter recommends that USDA (2) Personnel qualifications application had to be submitted, the simply say that Rural Development (maximum 20 points). timeframes were just different. employees will endeavor to provide (3) Commitments and support Response: The Agency agrees that the meaningful feedback to all prospective (maximum 10 points). Simplified Application process needs applicants. (4) Work plan/budget (maximum 20 improvement and will consider the Response: The Agency disagrees and points). commenters’ points when developing has retained the text at § 4284.940 (5) Contribution to priority application material. requiring written notification to include beneficiaries (maximum 25 points). Comment: One commenter states that reasons for ineligible or incomplete (6) Administrator priority categories the proposed rule is far too vague on findings in order to provide useful and points (maximum 5 points). what is proposed for less than $50,000 feedback should the applicant re-apply (7) Rural or rural area location (10 grants. The commenter recommends in the future. points may be awarded). such grant applications be limited to a (c) Priority groups. In the event of Proposal Evaluation Criteria and Form RD 4284–1, plus a business plan applications equally ranked but in Scoring Applications (§ 4284.942) of 5 or less pages, with no requirement which one application substantially for financial statements or feasibility Comment: One commenter states that serves one or more of the priority groups study regardless of whether the project the specific elements of scoring criteria and the other does not, or one serves a involves an emerging market. are not contained in the proposed rule. priority group or groups to a Response: The Agency agrees the Presumably this allows the Agency to significantly greater degree than the Simplified Application process requires allow the program to evolve to meet other, the one that better serves the improvement and will consider the changing needs. The commenter also priority group shall be the higher ranked commenter’s points when developing. encourages the Agency to continue to proposal. The commenter states it is difficult to Filing Instructions (§ 4284.933) incorporate strong evidence of business viability as critical components of the see how the intent of Congress has been Comment: One commenter asks if, scoring systems. met in a proposed rule that proposes to going forward, USDA will be applying provide just 15 points out of 110 points a set release/due date annually. Response: The Agency has to proposals which fulfill the statutory Collectively, their organizations are in determined that it needs to provide priority. They feel there needs to be a favor of this. Also, could there be more more specific elements in the rule text. more substantial weighting of the than one award date annually to better Although this diminishes flexibility, it ranking criteria to create a real priority. facilitate the applicant’s timeframe for facilitates consistency and applicant Assuming the Agency prefers to keep applying for working capital and awareness. The Agency agrees that the point total constant, they adjusted launching the business? As it now evidence of business viability in the the numbers to give more weight to the stands, the time lag between grant form of strong financial, technical and statutory priority while not doing application, award, and implementation logistical support to successfully damage to the overall construct of the dissuades many potential applicants. complete the project should continue to scoring system. Response: The Agency will not set a be a critical component of scoring. Also, the ‘‘type of applicant’’ phrase in permanent application deadline. Comment: One commenter the proposed rule’s scoring system is Because the program is oversubscribed, recommends that the Agency revise this vague and potentially very misleading. it is not feasible to have multiple section to clarify that all scoring The commenter recommends that clear application dates. references must be readily identified and unambiguous language be Comment: One commenter supports information cited within the proposal substituted to tie these points directly to the concept of a fixed annual date of itself and not to external sources of the statutory priorities. application and states that March 15 is information, or it will not be Language should also be added to the a reasonable date. considered. final rule to make clear that ‘‘priority’’

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means, among other things, that if capital Grant Applicant that received a points for cooperatives as a priority applications are otherwise equally working capital Grant within the past 3 category under the Type of Applicant ranked but one application substantially years. (Thus discouraging repeat scoring criterion. serves one or more of the priority groups grantees somewhat and encouraging the Comment: One commenter states that and the other does not, or one does so distribution of VAPG awards to more, they support small farmers and would to a significantly greater degree than the different farmers.) like the VAPG to allow small farmers to other, the one that better serves the Response: The Agency reviewed the explore their new business ideas, to priority group is the higher ranked various comments and has not been create a sustainable environment for the proposal. persuaded to make changes other than community. Sustainability saves the Another commenter states that the reducing the number of points for type planet! approach proposed in § 4284.942(b) of applicant from 15 to 10. The 5 points Response: The Agency agrees with the continues the past practices. The removed here have been inserted into commenter and notes that small farmers commenter proposed the following 100 nature of the proposed project. This are a program priority as mandated by point system as more likely to result in reduction is based on the Agency’s statute. experience in the FY 2009 funding in wider distribution of VAPG awards to Type of Applicant projects that meet VAPG goals and that which 65 percent of awards were made better rewards merit and project types to applicants that received 15 points in Comment: Numerous commenters that fit into the VAPG mission: one of the priority categories. It is the state that the Agency should ensure that 50 points. Merits of the project position of the Agency that reducing the legislative priority for projects that (awarded by independent review priority points from 15 to 10 will result targeted to small and mid-sized family panels). Essentially a business plan in a better balance between applicants farms and ranches and socially competition, looking at each project’s in priority categories and other disadvantaged farmers and ranchers set prospect for success and impact on applicants who do not qualify for by the 2008 Farm Bill are clearly revenue and market share. If the request priority points who also submit worthy expressed in the final rule and in the is for working capital, 40 points applications. scoring/evaluation process. Congress maximum if no feasibility study is Comment: One commenter states their has spoken—these are mandated VAPG included (thus encouraging but not grant represented a cost of $167,300 per priorities. Yet, the proposed rule would requiring a feasibility study). independent producer, and they did not award only 15 ranking points out of a 10 points. If the project involves an get any points under Section V.A.2. vii. potential 110 ranking points for projects emerging market (leaving it up to the The NOSA issued in September of 2009 targeted to this group. USDA should independent review panel to determine states: ‘‘2 points will be awarded to ensure the final rule awards 25 total the project is in fact legitimately new applications with a project cost per points for the priority group, and target and not just an established enterprise owner-producer of $100,001–$200,000.’’ small, mid-sized and socially under a different name). (thus A man and wife are considered two disadvantaged farmers and ranchers encouraging innovative new ideas over independent producers. Shouldn’t we should take priority over projects that continuation of past practices). get these two points? are not targeted in that fashion if 15 points. Smaller grant size requests. It is easy, in reading the grant proposals are otherwise equally ranked. 10 points if seeking a grant of 50 percent application, to confuse the ‘‘Planning Response: The Agency disagrees with of less than the maximum permitted by Grant Criteria’’ and the ‘‘Working Capital the suggestion to increase the points for the NOSA; 15 points if seeking a grant Criteria.’’ The commenter wonders this criterion to 25. It is the position of of 25 percent or less than the maximum whether the reviewer confused the two the Agency that reducing priority points permitted by the NOSA. (thus in grading their grant. There is a sea of from 15 to 10 will result in a better encouraging many small grants, black and white in the grant application balance among applicants in priority increasing the number of applicants that and the commenter wonders whether categories and other applicants who do may be assisted) clever use of print types and sizes not qualify for priority points who also 5 points. If 50 percent or more of the couldn’t help in that department. submit worthy applications. commodity to which value is to be Response: This is an administrative Comment: One commenter states that added is grown by the producer (thus item about a specific application and is the program should target small, mid- encouraging this, without requiring it). not appropriately addressed in sized and socially disadvantaged 5 points. If all of the owners of the regulations comments. farmers as defined by the 2008 Farm Bill applicant entity are involved in farming Comment: One commenter and award extra points to these targeted (thus encouraging this, without recommends that additional weight be groups. requiring it). provided to applications that spread the Response: The Agency notes that the 5 points. If all cash match (thus benefits among a number of producers program does target these farmers with encouraging a higher level of in the aggregate. The commenter states the reserved funding and priority commitment, versus the softer use of ‘‘in that, in doing so, this would ensure that points. kind’’ match, while discouraging the funds invested by USDA and the Comment: One commenter projects that lack financial strength). benefits of a future project generated recommends awarding all the points for 10 points. If Beginning/Socially through a VAPG award would be the priority group defined in the 2008 Disadvantaged/or Small/Medium distributed to a wider number of Farm Bill and adding clear language that Family Farm (thus, honoring the producers, while lowering overall costs states proposals targeting small, mid- statute’s requirement for such priority, to the government. sized and socially disadvantaged without overly prioritizing a category Response: The Agency agrees with the farmers and ranchers should take that already lays statutory claim to 10 commenter as to the benefits that may priority over projects that are not percent of the VAPG funds). The current be obtained by providing additional targeted in that fashion if proposals are proposal of 15 points is excessive. weight to applications that spread the otherwise equally ranked. 10 point penalty. If Planning Grant benefits among a number of producers Response: The statute targets the Applicant that received a Planning in the aggregate. To do this, the Agency specific categories mentioned by the Grant within the past 3 years; If working has revised the rule by including 10 commenter, as well and Beginning

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Farmers and Ranchers and requires that states that this new priority is not would apparently penalize projects that they receive priority in the form of necessary and it is not part of the involve market launches, promotions, reserved funding and additional points. statutory logic behind the program, and advertizing campaigns conducted in Comment: One commenter states that which is to support agricultural areas with the highest concentration of the evaluation and scoring should be producers, with no regard to the customers. A similar question arises changed to better reflect Congressional geographic or urban/rural location. when a planning project involves intent in establishing priority Two commenters state that the contracting with advertising venues, beneficiaries for the program. The standards are vague as to how the specialists, or consultants located in commenter believes the 15 points for ‘‘projects located in a rural area’’ urban areas, which would presumably beginning farmers and ranchers, socially language would be applied and the conduct much of their work in their disadvantaged farmers and ranchers and reasoning given for the additional hometowns. small and mid-size family farmers and weight. The additional classification of Many cooperatives, agricultural trade ranchers should be increased to at least ‘‘rural’’ provides cooperatives with associations, and other applicants are 25 points for projects that propose to packinghouses or other facilities in an headquartered in locations that exceed provide contributions and opportunities urban area at a competitive 50,000 in population, however the for farmers and ranchers meeting these disadvantage for grant funds. Although growers that actually benefit are by-and- definitions. the beneficiary of a project is the farmer large rural. The new rule would seem to One commenter encourages USDA not and most likely located in a rural area, penalize an applicant conducting a to increase the number of points for many activities such as processing, project in its headquarters city even New and Beginning Farmers beyond the packaging and marketing of products do though the benefits would flow to rural current 15. The commenter states that not take place in rural areas. Many areas. This scoring bias seems contrary the VAPG program should continue to cooperatives have infrastructure located to the VAPG’s stated purpose of benefit a wide range of producers. While closer to urban markets. The increasing income to growers. recent actions to set aside program commenters believe this language One commenter states that the funds for New and Beginning Farmers conflicts with the goal of providing proposed rule grants 10 additional and Ranchers is appropriate, the additional benefits to rural producers, scoring points (above the 100 ordinarily substantial majority of funds should be especially in the state of California. possible) to ‘‘projects located in a rural awarded based on projected viability of One of the commenters states that, area,’’ generally defined as areas with the business, and be accessible to a wide depending on the definition of ‘‘rural less than 50,000 in population. The number of active farmers. The area,’’ proposals from states such as meaning of this is clearly not defined commenter states that, for those California could be precluded from the and ultimately may run counter to the individuals/families that are just getting points entirely and put at a program’s intent. Although the into agriculture, it is a terribly disadvantage nationally. The beneficiary of a project is ultimately the challenging task to capitalize and ‘‘get commenter states that using the rural producer, many activities such as good’’ at agricultural production AND to proposed scoring criteria would cause processing, packaging, marketing of participate in the creation/launch of a additional confusion while being products does not take place in ‘‘rural’’ value-added enterprise. To this extent, irrelevant to the goal of increasing areas; nor are cooperatives necessarily New and Beginning Farmers should be producer income, which ultimately headquartered in ‘‘rural’’ areas while given modest special support through supports those rural areas. The their profits are channeled back to those the VAPG program, but USDA should commenter encourages USDA to adjust areas. Using this as scoring criteria does not transform this program into a the proposed scoring criteria, keeping not seem relevant to the goal of special form of subsidy for this group of these concerns in mind. increasing producer income, which producers at the expense of other Another commenter states that the ultimately supports those rural areas. eligible categories of farmers. Awarding definition of projects that ‘‘will take 15 points for New and Beginning place in rural places’’ is vague. The One commenter hopes there will not Farmers is an appropriate way of commenter supports the idea that be restrictions placed on their ability to supporting these ventures. entities that are headquartered and receive grant support if their marketing Response: It is the position of the based in rural communities should get activities take place in metropolitan Agency that reducing priority points increased points compared to those that areas. The commenter states that, while from 15 to 10 will result in a better are headquartered in urban centers. they often do market in rural balance between applicants in priority However, the commenter does not communities, including the one in categories and other applicants who do support the idea that all tasks (i.e. which they live and work, the majority not qualify for priority points who also advertising, promotions, contract of the customers of their producers are submit worthy applications. manufacturing, etc) must also be located in major markets, like New York, in rural places in order to qualify for the Southern California, Texas, Chicago, Rural or Rural Area additional 10 points. and Florida. Comment: Numerous commenters One commenter states that the Response: The Agency agrees with the raised concern on this proposed scoring proposed rule § 4284.942 grants 10 concerns raised by the commenters. criterion. These concerns are presented additional scoring points (above the 100 Further, the statute does not include a below. ordinarily possible) to ‘‘projects located rural area requirement for this program. One commenter states that the in a rural area,’’ generally defined as Therefore, the Agency has removed this proposed rule adds a new priority that areas with less than 50,000 in provision from the rule. awards 10 points to projects that are population. This could pose many Grant Agreement (§ 4284.951) ‘‘rural’’. This is confusing because applicants problems—including those almost by definition all commodities located in rural areas. Comment: One commenter states that start out as rural and are then tailored The VAPG is a marketing grant. the title of this section should be to an urban consumer. How a project’s Marketing projects are often performed changed to, ‘‘Obligate and Award ‘‘rural’’ character is assessed is highly in areas with large populations because Funds.’’ The commenter suggested unclear and confusing. The commenter that is where the people are. This rule reworking the sections as follows:

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(a) Letter of conditions (must include Transfer of Obligations (§ 4284.962) evaluation criteria and scoring section. 90 day provision for grantee to meet Comment: One commenter The 2008 Farm Bill amended the VAPG LOC conditions (remove from (b) GA recommends revising this section to program in several important ways, section)). indicate that any transfer of obligation is including identifying priority groups for (b) Grant agreement and conditions. at the discretion of the Agency and funding and establishing two program (c) Other documentation, (should determined on a case-by-case basis. The reserved funds. The commenter believes document the various other forms the commenter also recommends that these program modifications are grantee will execute in connection with augmenting the language relating to significant and should be addressed in the grant). requirements for the substituted the preamble to the rule in the Summary (d) Grant disbursements (must clarify applicant so that all eligibility section and in the Supplemental the process for disbursing funds, requirements are spelled out, including Information section. Most importantly, including SF 270, Request for maintaining the applicant type of the the proposal evaluation criteria and Advancement or Reimbursement, and original applicant, and maintaining the scoring applications section (§ 4284.942) supporting documentation identity and number of independent needs to be strengthened to make the expectations). producers originally committed to the statutory priorities actual programmatic The commenter states that these project for both general and reserved priorities. changes provide the applicant/grantee funds. The commenter also suggests that The statutory priorities and set-asides with a more comprehensive the Agency emphasize that the project are clearly intended to ensure that these understanding of the process and must continue to meet all Product, producer groups and this type of rural requirements associated with the award. Purpose, Branding, and Reserved Funds development marketing model are more Response: The Agency agrees with the eligibility requirements. The commenter likely to be supported with VAPG grant commenter’s suggestion and has revised states that, for anything less than this, funds. Because the language changes in the rule accordingly. it would be better to return the funds to the 2008 Farm Bill fundamentally the program for use by another address the character of the VAPG grant Monitoring and Reporting Program program Congress intended to create, Performance (§ 4284.960) competitive grantee that has endured the process and eligibility analysis. the commenter believes that they should Comment: One commenter states that Response: The Agency agrees with the be clearly referenced in the discussion the Agency should clarify that the suggested revisions and has revised the of the rule. They find the omission of project must be completed per terms rule as suggested by the commenter such a discussion in the preamble to the and conditions specified in the except for the suggested text regarding proposed rule to be quite glaring. approved work plan and budget, grant maintaining applicant type, maintaining Response: The Agency agrees that agreement and Letter of Conditions. The the identity and number of independent discussion of 2008 Farm Bill priorities commenter states that this brings the producers originally committed to the should be included in the preamble. work plan and budget concept back to project, because this would However, the Agency’s experience in project performance as the performance unnecessarily limit the Agency’s implementing the reserved funding and benchmark for all eligible activities. flexibility. priority scoring in 2009 highlighted the Response: The Agency agrees with the need to balance statutory priorities with suggested revision and has revised the Grant Close Out and Related Activities fairness to other applicants who also paragraph accordingly. (§ 4284.963) submitted worthy applications. Comment: In referring to Comment: One commenter Preamble—Summary § 4284.960(b)(4), one commenter states recommends revising this section to that the Agency should provide indicate actual closeout practices. Grant Comment: One commenter suggests examples of what additional project closeout is not usually about suspension adding the following language to the and/or performance data might be or termination of a grant prematurely, Summary section when issuing the final requested by the Agency to meet 2008 and that message will be provided to the rule: Farm Bill categories and expectations, grantee in § 4284.960(b)(5). Closeout is The program provides a priority for such as jobs created, increased usually about administrative wrap-up funding for projects that contribute to revenues, renewable energy capacity or post the completion of the grant project opportunities for beginning farmers or emissions reductions, results of supply or funding period. The commenter ranchers, socially disadvantaged farmers chain arrangements, BFR or SDFR. The states that typical closeout activities or ranchers, and operators of small- and commenter states that this is a heads up include a Letter to Grantee with final medium-sized family farms and on the grant agreement requirements. closeout instructions and reminders for ranches. Further, it creates two reserved Response: The Agency agrees with the amounts de-obligated for any funds each of which will include 10 suggested revision and has revised the unexpended grant funds, final project percent of program funds each year to paragraph as suggested by the performance reports due, submission of support applications that support commenter. necessary deliverables, audit opportunities for beginning and socially Comment: One commenter suggests requirements, any outstanding items of disadvantaged farmers and ranchers and adding a new paragraph to § 4284.960(b) closure. for proposed projects that develop mid- that states that, as part of the monitoring Response: The Agency agrees with the tier value marketing chains. process, RBS may terminate or suspend commenter and has revised the rule Response: The Agency agrees and has the grant for lack of adequate or timely § 4284.963 and added additional text added the suggested text to the progress, reporting, or documentation, describing grant closeout activities. Preamble Summary. or for failure to comply with Agency Preamble—Supplementary Information requirements. Preamble Response: The Agency agrees with the Comment: One commenter states that Comment: One commenter suggests suggested revision and has added a new the final rule should give proper the addition of the following language to paragraph (see § 4284.960(b)(5)) as acknowledgement of the statutory VAPG the SUPPLEMENTARY INFORMATION section: suggested by the commenter. priorities by strengthening the grant SUPPLEMENTARY INFORMATION:

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I. Background difficult narrative application content, Every state would receive an allocation, and its lengthy application process. The similar to the approach currently used B. Nature of the Program commenter states that the proposed rule with the Rural Business Enterprise This subpart contains the provisions does little more than institutionalize the Grant program. Every state would and procedures by which the Agency design and delivery of the VAPG conduct a competition overseen by its will administer the Value-Added program that Rural Development has own independent review panel Producer Grant (VAPG) Program. The used in past NOSA’s. The commenter constituted as currently outlined in RD primary objective of this grant program recommends that it would be better to Instruction 4284–J, § 4284.912(a). In is to help Independent Producers of leave the existing RD Instructions 4284– creating these panels, states could even Agricultural Commodities, Agriculture A and 4284–J in place with the few be encouraged to allow applicants to Producer Groups, Farmer and Rancher changes required by the 2008 Farm Bill present their business plans and answer Cooperatives, and Majority-Controlled than to go forward with this proposed questions, so that the heavy burden of Producer-Based Business Ventures rule. grant writing could be further reduced develop strategies to create marketing The commenter also encourages Rural and program accessibility increased. opportunities and to help develop Development’s leadership to take a step The commenter states that, in making Business Plans for viable marketing back from this proposed rule and awards, RD state offices should be given opportunities regarding production of instead engage the agricultural the authority to reduce award sizes to bio-based products from agricultural community in a series of listening assure an efficient use of their state commodities. As with all value-added sessions with VAPG constitutes to find allocation. The current process of efforts, generating new products, a more sensitive program design. While making awards on an all or nothing creating expanded marketing this will delay the implementation of a basis is an inefficient use of scarce opportunities, and increasing producer new rule and may temporarily delay federal grant dollars. income are the end goal. VAPG program delivery, it will Response: The Agency acknowledges Eligible applicants are independent ultimately result in a program that is far the commenter’s concerns and is agricultural producers, farm and rancher more effective and efficient in meeting continuing to work to streamline the cooperatives, agricultural producers the needs for which it was designed. program and support field staff that Response: The Agency acknowledges groups, and majority-controlled implement the program. However, the the commenter’s concerns and producer-based business ventures. Agency does not have the authority to Added text: ‘‘The program includes welcomes feedback and suggestions institute state allocations. priorities for projects that contribute to from the agricultural community. The opportunities for beginning farmers or Agency is attempting to address these List of Subjects in 7 CFR Part 4284 ranchers, socially disadvantaged farmers concerns within the context of the Agricultural commodities, Grant or ranchers, and operators of small- and proposed rule. programs, Housing and community medium-sized family farms and General—Program Design development, Rural areas, Rural ranches. Applications from these development, Value-added activities. priority groups will receive additional Comment: One commenter points in the scoring of applications. In recommends full utilization of Rural For the reasons set forth in the the case of equally ranked proposals, Development’s core strength—the field preamble, Chapter XLII of title 7 of the preference will be given to applications office structure. The commenter states Code of Federal Regulations is amended that more significantly contribute to that delivery of VAPG should be as follows: opportunities for beginning farmers and accomplished by allocating all or nearly PART 4284—GRANTS ranchers, socially disadvantaged farmers all VAPG funds to the state level for and ranchers, and operators of small- delivery via local competitions conducted by local experts most ■ 1. The authority citation for part 4284 and medium-sized family farms and continues to read as follows: ranches. familiar with local conditions and local Further, the program includes two opportunities. This will assure a Authority: 5 U.S.C. 301 and 7 U.S.C. 1989. reserved funds each of which will nationwide geographic distribution of ■ 2. Part 4284 is amended by revising include ten percent of program funds VAPG funds, and it will defuse the subpart J to read as follows: each year to support applications that current high hurdle presented to local support projects that benefit beginning producers who are asked to submit Subpart J—Value-Added Producer Grant Program and socially disadvantaged farmers and projects for review and selection/non- ranchers and that develop mid-tier selection by remote national players. Sec. General value marketing chains.’’ The commenter states that despite noble 4284.901 Purpose. Response: The Agency agrees and has efforts by national Rural Development 4284.902 Definitions. 4284.903 Review or appeal rights. added the suggested text to the staff, the VAPG program has been repeatedly delayed and interrupted in 4284.904 Exception authority. description of the program. 4284.905 Nondiscrimination and its delivery, with extremely short NOSA General compliance with other Federal laws. application windows followed by long 4284.906 State laws, local laws, regulatory Comment: One commenter states that months of waiting for award selections commission regulations. the widespread opinion of the VAPG and announcements. This is inevitable 4284.907 Environmental requirements. program is that it is a ‘‘grant program when the staffing strengths of state 4284.908 Compliance with other with barriers.’’ The commenter states offices are bypassed and work must pass regulations. that, during Rural Development- through the inevitable bottleneck of a 4284.909 Forms, regulations, and sponsored jobs forums in Oregon in small national office staff no matter how instructions. January 2010 and in many other motivated. 4284.910–4284.914 [Reserved] settings, this analysis has been repeated The commenter also states VAPG Funding and Programmatic Change by a number of producers who cited selection process should be redesigned Notifications VAPG’s complex rules poorly suited to as a straightforward business plan 4284.915 Notifications. modern agricultural realities, its competition on a state by state basis. 4284.916–4284.919 [Reserved]

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Eligibility independent producer has cultivated, 51 percent or more beginning farmers or 4284.920 Applicant eligibility. raised, or harvested with legal access ranchers. Except as provided, for the 4284.921 Ineligible applicants. rights. Agricultural commodities purposes of § 4284.922(c)(1)(i), to 4284.922 Project eligibility. include plant and animal products and compete for reserved funds, for 4284.923 Eligible uses of grant and their by-products, such as crops, applicant entities with multiple owners, matching funds. forestry products, hydroponics, nursery all owners must be eligible beginning 4284.924 Ineligible uses of grant and stock, aquaculture, meat, on-farm farmers or ranchers. matching funds. generated manure, and fish and seafood Branding. The activities involved in 4284.925 Funding limitations. the practice of creating a name, symbol 4284.926–4284.929 [Reserved] products. Agricultural commodities do not include horses or other animals or design that identifies and Applying for a Grant raised or sold as pets, such as cats, dogs, differentiates a product from other 4284.930 Preliminary review. and ferrets. products that attracts and retains 4284.931 Application package. Agricultural food product. customers or encourages confidence in 4284.932 Simplified application. Agricultural food products can be a raw, the quality and performance of that 4284.933 Filing instructions. cooked, or processed edible substance, individual or firm’s products or 4284.934–4284.939 [Reserved] beverage, or ingredient intended for services. Processing and Scoring Applications human consumption. These products Business plan. A formal statement of 4284.940 Processing applications. cannot be animal feed, live animals, a set of business goals, the reasons why 4284.941 Application withdrawal. non-harvested plants, fiber, medicinal they are believed attainable, and the 4284.942 Proposal evaluation criteria and products, cosmetics, tobacco products, plan for reaching those goals, including scoring applications. or narcotics. pro forma financial statements 4284.943–4284.949 [Reserved] Agricultural producer. An individual appropriate to the term and scope of the or entity directly engaged in the project and sufficient to evidence the Grant Awards and Agreement production of an agricultural viability of the venture. It may also 4284.950 Award process. commodity, or that has the legal right to contain background information about 4284.951 Obligate and award funds. harvest an agricultural commodity, that the organization or team attempting to 4284.952–4284.959 [Reserved] is the subject of the value-added project. reach those goals. Post Award Activities and Requirements Agricultural producers may ‘‘directly Change in physical state. An 4284.960 Monitoring and reporting program engage’’ either through substantially irreversible processing activity that performance. participating in the labor, management, alters the raw agricultural commodity 4284.961 Grant servicing. and field operations themselves or by into a marketable value-added product. 4284.962 Transfer of obligations. maintaining ownership and financial This processing activity must be 4284.963 Grant close out and related control of the agricultural operation. something other than a post-harvest activities. Agricultural producer group. A process that primarily acts to preserve 4284.964–4284.999 [Reserved] membership organization that the commodity for later sale. Examples General represents independent producers and of eligible value-added products in this whose mission includes working on category include, but are not limited to, § 4284.901 Purpose. behalf of independent producers and fish fillets, diced tomatoes, bio-diesel This subpart implements the value- the majority of whose membership and fuel, cheese, jam, and wool rugs. added agricultural product market board of directors is comprised of Examples of ineligible products include, development grant program (Value- independent producers. The but are not limited to, pressure-ripened Added Producer Grants (VAPG)) independent producers, on whose produce, raw bottled milk, container administered by the Rural Business- behalf the value-added work will be grown trees, plugs, and cut flowers. Cooperative Service whereby grants are done, must be confirmed as eligible and Conflict of interest. A situation in made to enable viable agricultural identified by name or class. which a person or entity has competing producers (those who are prepared to Applicant. The legal entity submitting personal, professional, or financial progress to the next business level of an application to participate in the interests that make it difficult for the planning for, or engaging in, value- competition for program funding. The person or business to act impartially. added production) to develop applicant must be legally structured to Regarding use of both grant and businesses that produce and market meet one of the four eligible applicant matching funds, Federal procurement value-added agricultural products. The types: Independent Producer, standards prohibit transactions that provisions of this subpart constitute the Agricultural Producer Group, Farmer or involve a real or apparent conflict of entire provisions applicable to this Rancher Cooperative, or Majority- interest for owners, employees, officers, Program; the provisions of subpart A of Controlled Producer Based Business. agents, or their immediate family this part do not apply to this subpart. Beginning farmer or rancher. This members having a financial or other term has the meaning given it in section interest in the outcome of the project; or § 4284.902 Definitions. 343(a) of the Consolidated Farm and that restrict open and free competition The following definitions apply to Rural Development Act (7 U.S.C. for unrestrained trade. Specifically, this subpart: 1991(a)) and is an entity in which none grant and matching funds may not be Administrator. The Administrator of of the individual owners have operated used to support costs for services or the Rural Business-Cooperative Service a farm or a ranch for more than 10 years. goods going to, or coming from, a person or designees or successors. For the purposes of this subpart, a or entity with a real or apparent conflict Agency. The Rural Business- beginning farmer or rancher must be an of interest, including, but not limited to, Cooperative Service or successor for the Independent Producer that, at the time owner(s) and their immediate family programs it administers. of application submission, currently members. See § 4284.923(a) and (b) for Agricultural commodity. An owns and produces more than 50 limited exceptions to this definition and unprocessed product of farms, ranches, percent of the agricultural commodity to practice for VAPG. nurseries, and forests and natural and which value will be added and has an Departmental regulations. The man-made bodies of water, that the applicant ownership or membership of regulations of the Department of

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Agriculture’s Office of Chief Financial adoption, or live within the same transported is less than 400 miles from Officer (or successor office) as codified household, such as a spouse, domestic the origin of the product; or in 7 CFR parts 3000 through 3099, partner, parent, child, brother, sister, (2) The State in which the product is including, but not necessarily limited aunt, uncle, grandparent, grandchild, produced. to, 7 CFR parts 3015 through 3019, 7 niece, or nephew. Majority-controlled producer-based CFR part 3021, and 7 CFR part 3052, Independent producers. business venture. An entity (except and successor regulations to these parts. (1) Individual agricultural producers farmer or rancher cooperatives) in Emerging market. A new or or entities that are solely owned and which more than 50 percent of the developing, geographic or demographic controlled by agricultural producers. financial ownership and voting control market that is new to the applicant or Independent producers must produce is held by independent producers. the applicant’s product. To qualify as and own the majority of the agricultural Independent Producer members must be new, the applicant cannot have commodity to which value will be confirmed as eligible and must be supplied this product, geographic, or added as the subject of the project identified by name or class, along with demographic market for more than two proposal. Independent producers must their percentage of ownership. years at time of application submission. maintain ownership of the agricultural Marketing plan. A plan for the project Family farm. The term has the commodity or product from its raw state conducted by a qualified consultant that meaning given it in § 761.2 of title 7, through the production and marketing identifies a market window, potential Code of Federal Regulations as in effect of the value-added product. Producers buyers, a description of the distribution system and possible promotional on November 8, 2007 (see 7 CFR parts who produce the agricultural campaigns. 700–799, revised as of January 1, 2007), commodity under contract for another Matching funds. A cost-sharing in effect that, a Family Farm produces entity, but do not own the agricultural contribution to the project via agricultural commodities for sale in commodity or value-added product confirmed cash or funding sufficient quantity to be recognized as a produced are not considered commitments from eligible sources farm and not a rural residence, owners independent producers. Entities that without a real or apparent conflict of are primarily responsible for daily contract out the production of an interest, that are used for eligible project physical labor and management, hired agricultural commodity are not purposes during the grant funding help only supplements family labor, and considered independent producers. period. Matching funds must be at least owners are related by blood or marriage Independent producer entities must equal to the grant amount, and or are immediate family. confirm their owner members as eligible combined grant and matching funds Farm or ranch. Any place from which and must identify them by name or must equal 100 percent of the total $1,000 or more of agricultural products class. were raised and sold or would have project costs. All matching funds must (2) A steering committee comprised of be verified by authentic documentation been raised and sold during the specifically identified agricultural previous year, but for an event beyond from the source as part of the producers in the process of organizing application. Matching funds must be the control of the farmer or rancher. one of the four program eligible entity Farm- or Ranch-based renewable provided in the form of confirmed types that will operate a value-added energy. An agricultural commodity that applicant cash, loan, or line of credit, or venture and will supply the majority of is used to generate renewable energy on provided in the form of a confirmed the agricultural commodity for the a farm or ranch owned or leased by the applicant or family member in-kind value-added project during the grant independent producer applicant that contribution that meets the period. Such entity must be legally produces the agricultural commodity. requirements and limitations in authorized before the grant agreement On-farm generation of energy from § 4284.923(a) and (b); or confirmed will be approved by the Agency. wind, solar, geothermal or hydro third-party cash or eligible third-party (3) A harvester of an agricultural sources are not eligible. in-kind contribution; or confirmed non- Farmer or rancher cooperative. A commodity that can document their federal grant sources (unless otherwise business owned and controlled by legal right to access and harvest the provided by law). See examples of independent producers that is majority of the agricultural commodity ineligible matching funds and matching incorporated, or otherwise identified by that will be used for the value-added funds verification requirements in the state in which it operates, as a product. §§ 4284.924 and 4284.931. cooperatively operated business. The Local or regional supply network. An Medium-sized farm. A farm or ranch independent producers, on whose interconnected group of entities through that is structured as a family farm that behalf the value-added work will be which agricultural based products move has averaged $250,001 to $1,000,000 in done, must be confirmed as eligible and from production through consumption annual gross sales of agricultural identified by name or class. in a local or regional area of the United commodities in the previous three Feasibility study. An analysis by a States. Examples of participants in a years. qualified consultant of the economic, supply network may include Mid-tier value chain. Local and market, technical, financial, and agricultural producers, aggregators, regional supply networks that link management capabilities of a proposed processors, distributors, wholesalers, independent producers with businesses project or business in terms of the retailers, consumers, and entities that and cooperatives that market value- project’s expectation for success. organize or provide facilitation services added agricultural products in a manner Financial feasibility. The ability of a and technical assistance for that: project or business to achieve the development of such networks. (1) Targets and strengthens the income, credit, and cash flows to Locally-produced agricultural food profitability and competitiveness of financially sustain a venture over the product. Any agricultural food product, small and medium-sized farms and long term. as defined in this subpart, that is raised, ranches that are structured as a family Fiscal year. The Federal government’s produced, and distributed in: farm; and fiscal year. (1) The locality or region in which the (2) Obtains agreement from an eligible Immediate family. Individuals who final product is marketed, so that the agricultural producer group, farmer or are closely related by blood, marriage, or total distance that the product is rancher cooperative, or majority-

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controlled producer-based business Qualified consultant. An the requirements specified in venture that is engaged in the value independent, third-party, without a paragraphs (1) and (2) of this definition. chain on a marketing strategy. conflict of interest, possessing the (1) The agricultural commodity must (3) For mid-tier value chain projects, knowledge, expertise, and experience to meet one of the following five value- the Agency recognizes that, in a supply perform the specific task required in an added methodologies: chain network, a variety of raw efficient, effective, and authoritative (i) Has undergone a change in agricultural commodity and value- manner. physical state; added product ownership and transfer Rural Development. A mission area of (ii) Was produced in a manner that arrangements may be necessary. the Under Secretary for Rural enhances the value of the agricultural Consequently, applicant ownership of Development within the U.S. commodity; the raw agricultural commodity and Department of Agriculture (USDA), (iii) Is physically segregated in a value-added product from raw through which includes Rural Housing Service, manner that results in the enhancement value-added is not necessarily required, Rural Utilities Service, and Rural of the value of the agricultural as long as the mid-tier value chain Business-Cooperative Service and their commodity; proposal can demonstrate an increase in successors. (iv) Is a source of farm- or ranch-based customer base and an increase in Small farm. A farm or ranch that is renewable energy, including E–85 fuel; revenue returns to the applicant structured as a Family Farm that has or producers supplying the majority of the averaged $250,000 or less in annual (v) Is aggregated and marketed as a raw agricultural commodity for the gross sales of agricultural products in locally-produced agricultural food project. the previous three years. product. Planning grant. A grant to facilitate Socially disadvantaged farmer or (2) As a result of the change in the development of a defined program rancher. This term has the meaning physical state or the manner in which of economic planning activities to given it in section 355(e) of the the agricultural commodity was determine the viability of a potential Consolidated Farm and Rural produced, marketed, or segregated: value-added venture, and specifically Development Act (7 U.S.C. 2003(e)): A (i) The customer base for the for the purpose of paying for a qualified farmer or rancher who is a member of agricultural commodity is expanded and consultant to conduct and develop a a ‘‘socially disadvantaged group.’’ In this (ii) A greater portion of the revenue feasibility study, business plan, and/or definition, the term farmer or rancher derived from the marketing, processing, marketing plan associated with the means a person that is engaged in or physical segregation of the processing and/or marketing of a value- farming or ranching or an entity solely agricultural commodity is available to added agricultural product. owned by individuals who are engaged the producer of the commodity. Produced in a manner that enhances in farming or ranching. A socially Venture. The business and its value- the value of the agricultural commodity. disadvantaged group means a group added undertakings, including the The use of a recognizably coherent set whose members have been subjected to project and other related activities. of agricultural production practices in racial, ethnic, or gender prejudice Working capital grant. A grant to the growing or raising of the raw because of their identity as members of provide funds to operate a value-added commodity, such that a differentiated a group without regard to their project, specifically to pay the eligible market identity is created for the individual qualities. In the event that project expenses related to the resulting product. Examples of eligible there are multiple farmer or rancher processing and/or marketing of the products in this category include, but owners of the applicant organization, value-added product that are eligible are not limited to, sustainably grown the Agency requires that at least 51 uses of grant funds. apples, eggs produced from free-range percent of the ownership be held by chickens, or organically grown carrots. members of a socially disadvantaged § 4284.903 Review or appeal rights. Product segregation. Separating an group. Except as provided, for the A person may seek a review of an agricultural commodity or product on purposes of § 4284.922(c)(1)(ii), to Agency decision under this subpart the same farm from other varieties of the compete for reserved funds, all farmer from the appropriate Agency official same commodity or product on the and rancher owners must be members of that oversees the program in question or same farm during production and a socially disadvantaged group. appeal to the National Appeals Division harvesting, with assurance of continued State. Any of the 50 States of the in accordance with 7 CFR Part 11. separation from similar commodities United States, the Commonwealth of § 4284.904 Exception authority. during processing and marketing in a Puerto Rico, the U.S. Virgin Islands, manner that results in the enhancement Guam, American Samoa, the Except as specified in paragraphs (a) of the value of the separated commodity Commonwealth of the Northern Mariana and (b) of this section, the or product. Islands, the Republic of Palau, the Administrator may make exceptions to Pro forma financial statement. A Federated States of Micronesia, and the any requirement or provision of this financial statement that projects the Republic of the Marshall Islands. subpart, if such exception is necessary future financial position of a company. State director. The term ‘‘State to implement the intent of the The statement is part of the business Director’’ means, with respect to a State, authorizing statute in a time of national plan and includes an explanation of all the Director of the Rural Development emergency or in accordance with a assumptions, such as input prices, State Office. Presidentially-declared disaster, or, on a finished product prices, and other State office. USDA Rural case-by-case basis, when such an economic factors used to generate the Development offices located in each exception is in the best financial financial statements. The statement state. interests of the Federal Government and must include projections for a minimum Total project cost. The sum of all is otherwise not in conflict with of three years in the form of cash flow grant and matching funds in the project applicable laws. statements, income statements, and budget that reflects the eligible project (a) Applicant eligibility. No exception balance sheets. tasks associated with the work plan. to applicant eligibility can be made. Project. All of the eligible activities to Value-added agricultural product. (b) Project eligibility. No exception to be funded by grant and matching funds. Any agricultural commodity that meets project eligibility can be made.

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§ 4284.905 Nondiscrimination and Form RD 2006–38, ‘‘Environmental methods that the Agency will use in compliance with other Federal laws. Justice (EJ) and Civil Rights Impact making these notifications is specified (a) Other Federal laws. Applicants Analysis (CRIA) Certification.’’ This in paragraph (c) of this section, and the must comply with other applicable certification must be done prior to grant timing of these notifications is specified Federal laws, including the Equal approval, obligation of funds, or other in paragraph (d) of this section. Employment Opportunities Act of 1972, commitments of Agency resources, (a) Funding and simplified the Americans with Disabilities Act, the including issuance of a Letter of applications. The Agency will issue Equal Credit Opportunity Act, Title VI Conditions, whichever occurs first. notifications concerning: of the Civil Rights Act of 1964, Section (1) The funding level and the 504 of the Rehabilitation Act of 1973, § 4284.906 State laws, local laws, minimum and maximum grant amount the Age Discrimination Act of 1975, and regulatory commission regulations. and any additional funding information 7 CFR part 1901, subpart E. If there are conflicts between this as determined by the Agency; and (b) Nondiscrimination. The U.S. subpart and State or local laws or (2) The contents of simplified Department of Agriculture (USDA) regulatory commission regulations, the applications, as provided for in prohibits discrimination in all its provisions of this subpart will control. § 4284.932. programs and activities on the basis of (b) Programmatic changes. The § 4284.907 Environmental requirements. race, color, national origin, age, Agency will issue notifications of the disability, and where applicable, sex, All grants awarded under this subpart programmatic changes specified in marital status, familial status, parental are subject to the environmental paragraphs (b)(1) through (4) of this status, religion, sexual orientation, requirements in subpart G of 7 CFR part section. genetic information, political beliefs, 1940 or successor regulations. (1) The following is the set of reprisal, or because all or part of an Applications for planning grants are Administrator priority categories that individual’s income is derived from any generally excluded from the may be considered if the provisions public assistance program. (Not all environmental review process by specified in § 4284.942(b)(6) are not to prohibited bases apply to all programs.) § 1940.333 of this title. Applicants for be used for awarding Administrator Persons with disabilities who require working capital grants must submit points: alternative means for communication of Form RD 1940–20, ‘‘Request for (i) Unserved or underserved areas. program information (Braille, large Environmental Information.’’ (ii) Geographic diversity. print, audiotape, etc.) should contact (iii) Emergency conditions. § 4284.908 Compliance with other (iv) Priority mission area plans, goals, USDA’s TARGET Center at (202) 720– regulations. and objectives. 2600 (voice and TDD). Any applicant (a) Departmental regulations. (2) Additional reports that are that believes it has been discriminated Applicants must comply with the generally applicable across projects against as a result of applying for funds regulations of the Department of within a program associated with the under this program should contact: Agriculture’s Office of Chief Financial monitoring of and reporting on project USDA, Director, Office of Adjudication Officer (or successor office) as codified performance. and Compliance, 1400 Independence in 7 CFR parts 3000 through 3099, (3) Any requirement specified in Avenue, SW., Washington, DC 20250– including, but not necessarily limited § 4284.933. 9410, or call (800) 795–3272 (voice) or to, 7 CFR parts 3015 through 3019, 7 (4) Preliminary review information. (202) 720–6382 (TDD) for information CFR part 3021, and 7 CFR part 3052, (c) Notification methods. The Agency and instructions regarding the filing of and successor regulations to these parts. will issue the information specified in a Civil Rights complaint. USDA is an (b) Cost principles. Applicants must paragraphs (a) and (b) of this section in equal opportunity provider, employer, comply with the cost principles found one or more Federal Register notices. In and lender. in 2 CFR part 230 and in 48 CFR part addition, all information will be (c) Civil rights compliance. Recipients 31.2. available at any Rural Development of grants must comply with Title VI of (c) Definitions. If a term is defined office. the Civil Rights Act of 1964, Section 504 differently in the Departmental (d) Timing. The Agency will make the of the Rehabilitation Act of 1973. This Regulations, 2 CFR part 230, or 48 CFR information specified in paragraphs (a) includes collection and maintenance of 31.2 and in this subpart, such term shall and (b) of this section available as data on the basis of race, sex and have the meaning as found in this specified in paragraphs (d)(1) through national origin of the recipient’s subpart. (3) of this section. membership/ownership and employees. (1) The Agency will make the These data must be available to conduct § 4284.909 Forms, regulations, and information specified in paragraph (a) of compliance reviews in accordance with instructions. this section available each fiscal year. 7 CFR Part 1901, subpart E. For grants, Copies of all forms, regulations, (2) The Agency will make the initial compliance review will be instructions, and other materials related information specified in paragraph conducted after Form RD 400–4, to the program referenced in this (b)(1) of this section available at least 60 ‘‘Assurance Agreement,’’ is signed and subpart may be obtained through the days prior to the application deadline, one subsequent compliance review after Agency. as applicable. the last disbursement of grant funds (3) The Agency will make the §§ 4284.910–4284.914 [Reserved] have been made, and the facility or information specified in paragraphs programs has been in full operations for Funding and Programmatic Change (b)(2) through (4) of this section 90 days. Notifications available on an as needed basis. (d) Executive Order 12898. When a project is proposed and financial § 4284.915 Notifications. §§ 4284.916–4284.919 [Reserved] assistance is requested, the Agency will In implementing this subpart, the Eligibility conduct a Civil Rights Impact Analysis Agency will issue notifications (CRIA) with regards to environmental addressing funding and programmatic § 4284.920 Applicant eligibility. justice. The CRIA must be conducted changes, as specified in paragraphs (a) To be eligible for a grant under this and the analysis documented utilizing and (b) of this section, respectively. The subpart, an applicant must demonstrate

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that they meet the requirements working capital grant for the proposed capital activities as defined at specified in paragraphs (a) through (d) project cannot receive any additional § 4284.923, as applicable, with eligible of this section, as applicable, and are grants for that project. tasks directly related to the processing subject to the limitations specified in (f) Active VAPG grant. If an applicant and/or marketing of the subject value- paragraphs (e) and (f) of this section. has an active value-added grant at the added product, to be demonstrated in (a) Type of applicant. The applicant time of a subsequent application, the the required work plan and budget as must demonstrate that they meet all currently active grant must be closed described at § 4284.922(b)(5). definition requirements for one of the out within 90 days of the application (4) Applications that propose following applicant types: submission deadline for the subsequent ineligible expenses in excess of 10 (1) An independent producer; competition, as published in the annual percent of total project costs will be (2) An agricultural producer group; NOFA. deemed ineligible to compete for funds. (3) A farmer or rancher cooperative; or Eligible applications selected for award (4) A majority-controlled producer- § 4284.921 Ineligible applicants. must eliminate any ineligible expenses based business venture. (a) Consistent with the Departmental from the project budget. (b) Emerging market. An applicant regulations, an applicant is ineligible if (5) The project work plan and budget that is an agricultural producer group, a the applicant is debarred or suspended must demonstrate eligible sources and farmer or rancher cooperative, or a or is otherwise excluded from or uses of funds and must: majority-controlled producer-based ineligible for participation in Federal (i) Present a detailed narrative business venture must demonstrate that assistance programs under Executive description of the eligible activities and they are entering into an emerging Order 12549, ‘‘Debarment and tasks related to the processing and/or market as a result of the proposed Suspension.’’ marketing of the value-added product project. (b) An applicant will be considered along with a detailed breakdown of all (c) Citizenship. ineligible for a grant due to an estimated costs allocated to those (1) Individual applicants must certify outstanding judgment obtained by the activities and tasks; that they: U.S. in a Federal Court (other than U.S. (ii) Identify the key personnel that (i) Are citizens or nationals of the Tax Court), is delinquent on the will be responsible for overseeing and/ United States (U.S.), the Republic of payment of Federal income taxes, or is or conducting the activities or tasks and Palau, the Federated States of delinquent on Federal debt. provide reasonable and specific Micronesia, the Republic of the timeframes for completion of the Marshall Islands, or American Samoa, § 4284.922 Project eligibility. activities and tasks; or To be eligible for a VAPG grant, the (iii) Identify the sources and uses of (ii) Reside in the U.S. after legal application must demonstrate that the grant and matching funds for all admittance for permanent residence. project meets the requirements specified activities and tasks specified in the (2) Entities other than individuals in paragraphs (a) through (c) of this budget; and indicate that matching must certify that they are at least 51 section, as applicable. funds will be spent at a rate equal to or percent owned by individuals who are (a) Product eligibility. Each product in advance of grant funds; and either citizens as identified under that is the subject of the proposed (iv) Present a project budget period paragraph (c)(1)(i) of this section or project must meet the definition of a that commences within the start date legally admitted permanent residents value-added agricultural product, range specified in the annual residing in the U.S. This paragraph is including a demonstration that: solicitation, concludes not later than 36 not applicable if the entity is owned (1) The value-added product results months after the proposed start date, solely by members of one immediate from one of the value-added and is scaled to the complexity of the family. In such instance, if at least one methodologies identified in paragraphs project. of the entity owners is a citizen or (1)(i) through (v) of the definition of (6) Except as noted in paragraphs national, as defined in paragraph (c)(1) value-added agricultural product; (b)(6)(i) and (ii) of this section, working of this section, then the entity is (2) As a result of the project, the capital applications must include a eligible. customer base for the agricultural feasibility study and business plan (d) Legal authority and responsibility. commodity or value-added product is completed specifically for the proposed Each applicant must demonstrate that expanded; and value-added project by a qualified they have, or can obtain, the legal (3) As a result of the project, a greater consultant. The Agency must concur in authority necessary to carry out the portion of the revenue derived from the the acceptability or adequacy of the purpose of the grant, and they must marketing or processing of the value- feasibility study and business plan for evidence good standing from the added product is available to the eligibility purposes. appropriate state agency or equivalent. applicant producer of the agricultural (i) An Independent Producer (e) Multiple grant eligibility. An commodity. applicant seeking a working capital applicant may submit only one (b) Purpose eligibility. grant of $50,000 or more, who can application in response to a solicitation, (1) The grant funds requested must demonstrate that they are proposing and must explicitly direct that it not exceed the amount specified in the market expansion for an existing value- compete in either the general funds annual solicitation for planning and added product(s) that they currently competition or in one of the named working capital grant requests, per own and produce from at least 50 reserved funds competitions. Separate § 4284.915. percent of their own agricultural entities with identical or greater than 75 (2) The matching funds required for commodity and that they have produced percent common ownership may only the project budget must be eligible and and marketed for at least 2 years at time submit one application for one entity without a real or apparent conflict of of application submission, may submit per year. Applicants who have already interest, available during the project a business or marketing plan for the received a planning grant for the period, and source verified in the value-added project in lieu of a proposed project cannot receive another application. feasibility study. These applications planning grant for the same project. (3) The proposed project must be must still document for increased Applicants who have already received a limited to eligible planning or working customer base and increased revenues

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returning to the applicant producers as the requirements for one of these and ranches that are structured as a a result of the project, and meet all other definitions. family farm, including the names of the eligibility requirements. Further, the (i) For beginning farmers and parties and the nature of their waiver of the independent feasibility ranchers, documentation must include a collaboration; study does not change the proposal description from each of the individual (iii) Demonstrate how the project, due evaluation or scoring elements that owner(s) of the applicant farm or ranch to the manner in which the value-added pertain to issues that might be organization, addressing the qualifying product is marketed, will increase the supported by an independent feasibility elements in the beginning farmer or profitability and competitiveness of at study, so applicants are encouraged to rancher definition, including the length least two, eligible, small or medium- well-document their project plans and and nature of their individual owner/ sized farms or ranches that are expectations for success in their operator experience at any farm in the structured as a family farm, including proposals. previous 10 years, along with one IRS documentation to confirm that the (ii) All four applicant types that income tax form from the previous 10 participating small or medium-sized submit a Simplified Application for years showing that each of the farms are structured as a family farm working capital grant funds of less than individual owner(s) did not file farm and meet these program definitions. A $50,000 are not required to provide an income; or a detailed letter from a description of the two farms or ranches independent feasibility study or certified public accountant or attorney confirming they meet the Family Farm business plan for the project/venture but certifying that each owner meets the requirements, and IRS income tax forms must provide adequate documentation reserved funds beginning farmer or evidencing eligible farm income is to demonstrate the expected increases in rancher eligibility requirements. For sufficient; customer base and revenues resulting applicant entities with multiple owners, (iv) Document that the eligible from the project that will benefit the all owners must be eligible beginning agricultural producer group/ producer applicants supplying the farmers or ranchers. cooperative/majority-controlled majority of the agricultural commodity (ii) For socially disadvantaged farmers producer-based business venture and ranchers, documentation must for the project. All other eligibility applicant organization has obtained at include a description of the applicant’s requirements remain the same. The least one agreement with another farm or ranch ownership structure and waiver of the requirement to submit a member of the supply network that is demographic profile that indicates the feasibility study and business plan does engaged in the value chain on a owner(s)’ membership in a socially not change the proposal evaluation or marketing strategy; or that the eligible disadvantaged group that has been scoring elements that pertain to issues independent producer applicant has subjected to racial, ethnic or gender that might be supported by a feasibility obtained at least one agreement from an prejudice; including identifying the study or business plan, so applicants are eligible agricultural producer group/ total number of owners of the applicant encouraged to well-document their cooperative/majority-controlled organization; along with a self- project plans and expectations for certification statement from the producer-based business venture success in their proposals. individual owner(s) evidencing their engaged in the value-chain on a (7) If the applicant is an agricultural membership in a socially disadvantaged marketing strategy; producer group, a farmer or rancher group. All farmer and rancher owners (A) For Planning grants, agreements cooperative, or a majority-controlled must be members of a socially may include letters of commitment or producer-based business venture, the disadvantaged group. intent to partner on marketing, applicant must demonstrate that it is (2) If the applicant is applying for distribution or processing; and should entering an emerging market unserved Mid-Tier Value Chain reserved funds, include the names of the parties with a by the applicant in the previous two the applicant must be one of the four description of the nature of their years. VAPG applicant types and the collaboration. For Working Capital (8) All applicants requesting working application must provide grants, demonstration of the actual capital funds must either be currently documentation demonstrating that the existence of the executed agreements is marketing each value-added agricultural project meets the Mid-Tier Value Chain required. product that is the subject of the grant definition, and must: (B) Independent Producer applicants application, or be ready to implement (i) Demonstrate that the project must provide documentation to confirm the working capital activities in accord proposes development of a local or that the non-applicant agricultural with the budget and work plan timeline regional supply network of an producer group/cooperative/majority- proposed. interconnected group of entities controlled partnering entity meets (c) Reserved funds eligibility. In (including nonprofit organizations, as program eligibility definitions, except addition to the requirements specified appropriate) through which agricultural that, in this context, the partnering in paragraphs (a) and (b) of this section, commodities and value-added products entity does not need to supply any of the requirements specified in move from production through the raw agricultural commodity for the paragraphs (c)(1) and (2) of this section consumption in a local or regional area project; must be met, as applicable, if applicants of the United States, including a (v) Demonstrate that the applicant choose to compete for reserved funds. description of the network, its organization currently owns and All eligible, but unfunded reserved component members, either by name or produces more than 50 percent of the funds applications will be eligible to by class, and its purpose; raw agricultural commodity that will be compete for general funds in that same (ii) Describe at least two alliances, used for the value-added product that is fiscal year, as funding levels permit. linkages, or partnerships within the the subject of the proposal; and (1) If the applicant is applying for value chain that link independent (vi) Demonstrate that the project will beginning farmer or rancher, or socially- producers with businesses and result in an increase in customer base disadvantaged farmer or rancher cooperatives that market value-added and an increase in revenue returns to reserved funds, the applicant must agricultural commodities or value- the applicant producers supplying the provide the following documentation to added products in a manner that majority of the raw agricultural demonstrate that the applicant meets all benefits small or medium-sized farms commodity for the project.

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(d) Priority. In addition, applicants operates as a cooperatively operated added product to consumers, paying for that demonstrate eligibility may apply business; inventory supply costs from a third for priority points if they propose (ii) Identify, by name or class, and party necessary to produce the value- projects that contribute to increasing confirm that the Independent Producers added product from the agricultural opportunities for beginning farmers or on whose behalf the value-added work commodity, and paying for a marketing ranchers, socially disadvantaged farmers will be done meet the definition campaign for the value-added product. or ranchers, or if they are Operators of requirements for an Independent In-kind contributions may include small- or medium-sized farms or Producer, including that each member is appropriately valued inventory of raw ranches that are structured as a family an individual agricultural producer, or commodity to be used in the project. In- farm, propose Mid-Tier Value Chain an entity that is solely owned and kind contributions of matching funds projects, or are a farmer or rancher controlled by agricultural producers, may also include contributions of time Cooperative. that is directly engaged in the spent on eligible tasks by applicants or (1) Applicants seeking priority points production of the majority of the applicant family members so long as the as beginning farmers or ranchers or as agricultural commodity to which value value of such contribution does not socially disadvantaged farmers or will be added; and exceed a maximum of 25 percent of the ranchers must provide the (iii) Provide evidence of ‘‘good total project costs and an adequate documentation specified in paragraphs standing’’ as a cooperatively operated explanation of the basis for the (c)(1)(i) or (ii), as applicable, of this business in the state of incorporation or valuation, referencing comparable section. For entities with multiple operations, as applicable. market values, salary and wage data, owners or members, 51 percent of § 4284.923 Eligible uses of grant and expertise or experience of the owners or members must be eligible matching funds. contributor, per unit costs, industry In general, grant and cost-share beginning farmers or ranchers or norms, etc. is provided. Final valuation matching funds have the same use socially disadvantaged farmers or for applicant or family member in-kind restrictions and must be used to fund ranchers, as applicable. contributions is at the discretion of the only the costs for eligible purposes as (2) Applicants seeking priority points Agency. as Operators of small- or medium-sized defined in paragraphs (a) and (b) of this farms and ranches that are structured as section. § 4284.924 Ineligible uses of grant and (a) Planning funds may be used to pay a family farm must: matching funds. (i) Be structured as family farm; for a qualified consultant to conduct Federal procurement standards (ii) Meet all requirements in the and develop a feasibility study, business prohibit transactions that involve a real associated definitions; and plan, and/or marketing plan associated or apparent conflict of interest for (iii) Provide the following with the processing and/or marketing of owners, employees, officers, agents, or documentation: a value-added agricultural product. their immediate family members having (A) A description from the individual Planning funds may not be used to a personal, professional, financial or compensate applicants or family owner(s) of the applicant organization other interest in the outcome of the members for participation in feasibility addressing each qualifying element in project; including organizational studies. However, in-kind contribution the definitions, including identification conflicts, and conflicts that restrict open of matching funds to cover applicant or of the average annual gross sales of and free competition for unrestrained family member participation in agricultural commodities from the farm trade. In addition, the use of funds is planning activities is allowed so long as in the previous three years, not to limited to only the eligible activities the value of such contribution does not exceed $250,000 for small operators or identified in § 4284.923 and prohibits exceed a maximum of 25 percent of the $1,000,000 for medium operators; other uses of funds. Ineligible uses of total project costs and an adequate (B) The names and identification of grant and matching funds awarded explanation of the basis for the the blood or marriage relationships of under this subpart include, but are not valuation, referencing comparable all applicant/owners of the farm; and limited to: market values, salary and wage data, (C) A statement that the applicant/ (a) Support costs for services or goods expertise or experience of the owners are primarily responsible for the going to or coming from a person or contributor, per unit costs, industry daily physical labor and management of entity with a real or apparent conflict of norms, etc., is provided. Final valuation the farm with hired help merely interest, except as specifically noted for for applicant or family member in-kind supplementing the family labor. limited in-kind matching funds in (3) Applicants seeking priority points contributions is at the discretion of the § 4284.923(a) and (b); for Mid-Tier Value Chain proposals Agency. Planning funds may not be (b) Pay costs for scenarios with must be one of the four eligible used to evaluate the agricultural noncompetitive trade practices; applicant types and provide the production of the commodity itself, documentation specified in paragraphs other than to determine the project’s (c) Plan, repair, rehabilitate, acquire, (c)(2)(i) through (c)(2)(vi) of this section, input costs related to the feasibility of or construct a building or facility demonstrating that the project meets the processing and marketing the value- (including a processing facility); Mid-Tier Value Chain definition. added product. (d) Purchase, lease purchase, or install (4) Applicants seeking priority points (b) Working capital funds may be fixed equipment, including processing for a Farmer or Rancher Cooperative used to pay the project’s operational equipment; must: costs directly related to the processing (e) Purchase or repair vehicles, (i) Demonstrate that it is a business and/or marketing of the value-added including boats; owned and controlled by Independent product. Examples of eligible working (f) Pay for the preparation of the grant Producers that is legally incorporated as capital expenses include designing or application; a Cooperative; or that it is a business purchasing a financial accounting (g) Pay expenses not directly related owned and controlled by Independent system for the project, paying salaries of to the funded project for the processing Producers that is not legally employees without ownership or and marketing of the value-added incorporated as a Cooperative, but is immediate family interest to process product; identified by the state in which it and/or market and deliver the value- (h) Fund research and development;

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(i) Fund political or lobbying (d) The aggregate amount of awards to Applications for planning grants are activities; majority controlled producer-based generally excluded from the (j) Fund any activities prohibited by 7 businesses may not exceed 10 percent of environmental review process by CFR parts 3015 and 3019, 2 CFR part the total funds obligated under this § 1940.333 of this title. 230, and 48 CFR subpart 31.2. subpart during any fiscal year. (6) All applicants are required to have (k) Fund architectural or engineering (e) Not more than 5 percent of funds a DUNS number (including individuals design work; appropriated each year may be used to and sole proprietorships). (l) Fund expenses related to the fund the Agricultural Marketing (b) Application content. The production of any agricultural Resource Center, to support electronic following content items must be commodity or product, including seed, capabilities to provide information completed when applying for a grant rootstock, labor for harvesting the crop, regarding research, business, legal, under this subpart: and delivery of the commodity to a financial, or logistical assistance to (1) Eligibility discussion. The processing facility; independent producers and processors. applicant must demonstrate in detail (m) Conduct activities on behalf of (f) Each fiscal year, the following how the: anyone other than a specifically amounts of reserved funds will be made (i) Applicant eligibility requirements identified independent producer or available: in §§ 4284.920 and 4284.921 are met; group of independent producers, as (1) 10 percent to fund projects that (ii) Project eligibility requirements in identified by name or class. The Agency benefit beginning farmers or ranchers, or § 4284.922 are met; considers conducting industry-level socially-disadvantaged farmers or (iii) Eligible use of grant and matching feasibility studies or business plans, that ranchers; and funds requirements in §§ 4284.923 and are also known as feasibility study (2) 10 percent to fund projects that 4284.924 are met; and (iv) Funding limitation requirements templates or guides or business plan propose development of mid-tier value templates or guides, to be ineligible in § 4284.925 are met. chains. (2) Evaluation criteria. Using the because the assistance is not provided to (3) Funds not obligated by June 30 of format prescribed by the application a specific group of Independent each fiscal year shall be available to the package, the applicant must address Producers; Secretary to make grants under this each evaluation criterion identified (n) Pay owner or immediate family subsection to eligible entities as below. member salaries or wages; determined by the Secretary. (i) Performance Evaluation Criteria. (o) Pay for goods or services from a As part of the application, applicants for person or entity that employs the owner §§ 4284.926–4284.929 [Reserved] both planning and working capital or an immediate family member; Applying for a Grant grants must suggest one or more (p) Duplicate current services or relevant criterion that will be used to replace or substitute support previously § 4284.930 Preliminary review. evaluate the performance of the grant provided; The Agency encourages applicants to project during its operational phase (q) Pay any costs of the project contact their State Office well in post-award, as benchmarks to ascertain incurred prior to the date of grant advance of the application submission whether or not the primary goals and approval, including legal or other deadline, to ask questions and to objectives proposed in the work plan are expenses needed to incorporate or discuss applicant and project eligibility accomplished during the project period. organize a business; potential. At its option, the Agency may These benchmarks should relate to the (r) Pay any judgment or debt owed to establish a preliminary review deadline overall project goal of creating and the United States; so that it may informally assess the serving new markets, with a resulting (s) Purchase land; or eligibility of the application and its increase in customer base and increase (t) Pay for costs associated with illegal completeness. The result of the in revenues returning to the producer activities. preliminary review is not binding on the applicants; as well as to the practical Agency. To implement this section, the § 4284.925 Funding limitations. and/or logistical activities and tasks to Agency will issue a notification be accomplished during the project (a) Grant funds may be used to pay up addressing this issue in accordance with period. The Agency application package to 50 percent of the total eligible project § 4284.915. costs, subject to the limitations will provide additional instruction to established for maximum total grant § 4284.931 Application package. assist applicants when responding to amount. All applicants are required to submit this criterion. Applicant suggested (b) The maximum total grant amount an application package that is performance criteria will be provided to a grantee in any one year comprised of the elements in this incorporated into the applicant’s semi- shall not exceed the amount announced section. annual and final reporting requirements in an annual notice issued pursuant to (a) Application forms. The following if selected for award, and will be § 4284.915, but in no event may the total application forms (or their successor specified in the grant agreement amount of grant funds provided to a forms) must be completed when associated with the award. In addition, grant recipient exceed $500,000. applying for a grant under this subpart. applicants for both planning and (c) A grant under this subsection shall (1) Form SF–424, ‘‘Application for working capital grants must identify the have a term that does not exceed 3 Federal Assistance.’’ number of jobs anticipated to be created years, and a project start date within 90 (2) Form SF–424A, ‘‘Budget or saved as a direct result of the project. days of the date of award, unless Information-Non-Construction Planning grant applicants should otherwise specified in a notice pursuant Programs.’’ identify the number of jobs expected to to § 4284.915. Grant project periods (3) Form SF–424B, ‘‘Assurances— be created or saved as a result of should be scaled to the complexity of Non-Construction Programs.’’ continuing the project into its the objectives for the project. The (4) Form RD 400–4, ‘‘Assurance operational phase. Working capital grant Agency may extend the term of the grant Agreement.’’ applicants should identify the actual period, not to exceed the 3-year (5) Form RD 1940–20, ‘‘Request for number of jobs created or saved as a maximum. Environmental Information.’’ result of the project.

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(ii) Proposal evaluation criteria. are without substantive documentation the elements that made the application Applicants for both planning and for an independent reviewer to confirm incomplete. If a resubmitted application working capital grants must address a valuation, conducting activities on is received by the applicable application each proposal evaluation criterion behalf of anyone other than a specific deadline, the Agency will reconsider the identified in § 4284.942 in narrative Independent Producer or group of application. form, in the application package. Independent Producers, expected (c) Where to submit. All applications (3) Certification of matching funds. program income at time of application, must be submitted to the State Office of Using the format prescribed by the or instances where a real or apparent Rural Development in the State where application package, applicants must conflict of interest exists, except as the project primarily takes place, or on- certify that: detailed in § 4284.923(a) and (b). line through grants.gov. (i) Cost-share matching funds will be (5) Business plan. For working capital (d) Format. Applications may be spent in advance of grant funding, such grant applications, applicants must submitted as paper copy, or that for every dollar of grant funds provide a copy of the business plan that electronically via grants.gov. If disbursed, not less than an equal was completed for the proposed value- submitted as paper copy, only one amount of matching funds will have added venture, except as provided for in original copy should be submitted. An been expended prior to submitting the §§ 4284.922(b)(6) and 4284.932. The application submission must contain all request for reimbursement; and Agency must concur in the acceptability required components in their entirety. (ii) If matching funds are proposed in or adequacy of the business plan. For all Emailed or faxed submissions will not an amount exceeding the grant amount, planning grant applications including be acknowledged, accepted or processed those matching funds must be spent at those proposing product eligibility by the Agency. a proportional rate equal to the match- under ‘‘produced in a manner that (e) Other forms and instructions. to-grant ratio identified in the proposed enhances the value of the agricultural Upon request, the Agency will make budget. commodity,’’ a business plan is not available to the public the necessary (4) Verification of cost-share matching required as part of the grant application. forms and instructions for filing funds. Using the format prescribed by (6) Feasibility study. As part of the applications. These forms and the application package, the applicant application package, applicants for instructions may be obtained from any must demonstrate and provide authentic working capital grants must provide a State Office of Rural Development, or documentation from the source to copy of the third-party feasibility study the Agency’s Value-Added Producer confirm the eligibility and availability of that was completed for the proposed Grant program Web site in http:// both cash and in-kind contributions that value-added project, except as provided www.rurdev.usda.gov/rbs/coops/ meet the definition requirements for for at §§ 4284.922(b)(6) and 4284.932. vadg.htm. Matching Funds and Conflict of Interest The Agency must concur in the in § 4284.902, as well as the following acceptability or adequacy of the §§ 4284.934–4284.939 [Reserved] criteria: feasibility study. (i) Matching funds are subject to the Processing and Scoring Applications same use restrictions as grant funds, and § 4284.932 Simplified application. § 4284.940 Processing applications. must be spent on eligible project Applicants requesting less than (a) Initial review. Upon receipt of an expenses during the grant funding $50,000 will be allowed to submit a application on or before the application period. simplified application, the contents of submission deadline for each fiscal year, (ii) Matching funds must be from which will be announced in an annual the Agency will conduct a review to eligible sources without a real or notice issued pursuant to § 4284.915. determine if the applicant and project apparent conflict of interest. Applicants requesting working capital are eligible, and if the application is (iii) Matching funds must be at least grants of less than $50,000 are not complete and sufficiently responsive to equal to the amount of grant funds required to provide feasibility studies or program requirements. requested, and combined grant and business plans, but must provide matching funds must equal 100 percent information demonstrating increases in (b) Notifications. After the review in of the total eligible project costs. customer base and revenue returns to paragraph (a) of this section has been (iv) Unless provided by other the producers supplying the majority of conducted, if the Agency has authorizing legislation, other Federal the agricultural commodity as a result of determined that either the applicant or grant funds cannot be used as matching the project. See § 4284.922(b)(6)(ii). project is ineligible or that the funds. application is not complete to allow (v) Matching funds must be provided § 4284.933 Filing instructions. evaluation of the application or in the form of confirmed applicant cash, Unless otherwise specified in a sufficiently responsive to program loan, or line of credit; or provided in the notification issued under § 4284.915, requirements, the Agency will notify the form of a confirmed applicant or family the requirements specified in applicant in writing and will include in member in-kind contribution that meets paragraphs (a) through (e) of this section the notification the reason(s) for its the requirements and limitations apply to all applications. determination(s). specified in § 4284.923(a) and (b); or (a) When to submit. Complete (c) Resubmittal by applicants. provided in the form of confirmed third- applications must be received by the Applicants may submit revised party cash or eligible third-party in-kind Agency on or before the application applications to the Agency in response contribution; or non-federal grant deadline established for a fiscal year to to the notification received under sources (unless otherwise provided by be considered for funding for that fiscal paragraph (b) of this section. If a revised law). year. Applications received by the grant application is received on or (vi) Examples of ineligible matching Agency after the application deadline before the application deadline, it will funds include funds used for an established for a fiscal year will not be be processed by the Agency. If a revised ineligible purpose, contributions considered. application is not received by the donated outside the proposed grant (b) Incomplete applications. specified application deadline, the funding period, third-party in-kind Incomplete applications will be Agency will not process the application contributions that are over-valued, or rejected. Applicants will be informed of and will inform the applicant that their

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application was not reviewed due to project, of the project, as well as the assistance, storage, processing, tardiness. operational efficiency, profitability, and marketing, or distribution arrangements (d) Subsequent ineligibility overall economic sustainability that are necessary for the project to determinations. If at any time an resulting from the project. In addition, proceed; and the level and quality of application is determined to be demonstrate the potential for expanding these contributions. Applications that ineligible, the Agency will notify the the customer base for the value-added demonstrate the project has strong applicant in writing of its product, and the expected increase in direct financial, technical and logistical determination. revenue returns to the producer-owners support to successfully complete the providing the majority of the raw project will receive more points than § 4284.941 Application withdrawal. agricultural commodity to the project. those that demonstrate less potential for During the period between the Applications that demonstrate high success in these areas. submission of an application and the likelihood of success in these areas will (4) Work Plan and Budget (graduated execution of award documents, the receive more points than those that score 0–20 points). In accord with applicant must notify the Agency in demonstrate less potential in these § 4284.922(b)(5), applicants must submit writing if the project is no longer viable areas. a comprehensive work plan and budget. or the applicant no longer is requesting (2) Qualifications of Project Personnel The work plan must provide specific financial assistance for the project. (graduated score 0–20 points). Identify and detailed narrative descriptions of When the applicant notifies the Agency, the individuals who will be responsible the tasks and the key project personnel the selection will be rescinded or the for completing the proposed tasks in the that will accomplish the project’s goals. application withdrawn. work plan, including the roles and The budget must present a detailed activities that owners, staff, contractors, breakdown of all estimated costs § 4284.942 Proposal evaluation criteria consultants or new hires may perform; associated with the activities and and scoring applications. and demonstrate that these individuals allocate those costs among the listed (a) General. The Agency will only have the necessary qualifications and tasks. The source and use of both grant score applications for which it has expertise, including those hired to do and matching funds must be specified determined that the applicant and market or feasibility analyses, or to for all tasks. An eligible start and end project are eligible, the application is develop a business operations plan for date for the project itself and for complete and sufficiently responsive to the value-added venture. Include the individual project tasks must be clearly program requirements, and the project is qualifications of those individuals indicated and may not exceed Agency likely feasible. Any applicant whose responsible to lead or manage the total specified timeframes for the grant application will not be reviewed project (applicant owners or project period. Points may not be awarded because the Agency has determined it managers), as well as those individuals unless sufficient detail is provided to fails to meet the preceding criteria will responsible for actually conducting the determine that both grant and matching be notified of appeal rights pursuant to various individual tasks in the work funds are being used for qualified § 4284.903. Each such viable application plan (such as consultants, contractors, purposes and are from eligible sources the Agency receives on or before the staff or new hires). Demonstrate the without a conflict of interest. It is application deadline in a fiscal year will commitment and the availability of any recommended that applicants utilize the be scored in the fiscal year in which it consultants or other professionals to be budget format templates provided in the was received. Each application will be hired for the project. If staff or Agency’s application package. scored based on the information consultants have not been selected at (5) Priority Points (lump sum score 0 provided and/or adequately referenced the time of application, provide specific or 10 points). Priority points may be in the scoring section of the application descriptions of the qualifications awarded in both the General Funds at the time the applicant submits the required for the positions to be filled. competition, as well as the Reserved application to the Agency. Scoring Applications that demonstrate the Funds competitions. Qualifying information must be readily identifiable strong credentials, education, applicants may request priority points if in the application or it will not be capabilities, experience and availability they meet the requirements for one of considered. of project personnel that will contribute the following categories and provide the (b) Scoring Applications. The criteria to a high likelihood of project success documentation specified in specified in paragraphs (b)(1) through will receive more points than those that § 4284.922(d), as applicable. Priority (b)(6) of this section will be used to demonstrate less potential for success in categories include: Beginning Farmer or score all applications. For each these areas. Rancher, Socially Disadvantaged Farmer criterion, applicants must demonstrate (3) Commitments and Support or Rancher, Operator of a Small or how the project has merit, and provide (graduated score 0–10 points). Producer Medium-sized farm or ranch that is rationale for the likelihood of project commitments to the project will be structured as a Family Farm, Mid Tier success. Responses that do not address evaluated based on the number of Value Chain proposals, and Farmer or all aspects of the criterion, or that do not independent producers currently Rancher Cooperative. It is recommended comprehensively convey pertinent involved in the project; and the nature, that applicants utilize the Agency project information will receive lower level and quality of their contributions. application package when documenting scores. The maximum number of points End-user commitments will be for priority points and refer to the that will be awarded to an application evaluated on the basis of potential or documentation requirements specified is 100. Points may be awarded lump identified markets and the potential in § 4284.922(d). All qualifying sum or on a graduated basis. The amount of output to be purchased, as applicants in this category will receive Agency application package will evidenced by letters of intent or 10 points. provide additional instruction to assist contracts from potential buyers (6) Administrator Priority Categories applicants when responding to the referenced within the application. Other (graduated score 0–10 points). Unless criteria below. Third-Party commitments to the project otherwise specified in a notification (1) Nature of the Proposed Venture will be evaluated based on the critical issued under § 4284.915(b)(1), the (graduated score 0–30 points). Describe and tangible nature of the contribution Administrator of USDA Rural the technological feasiblity of the to the project, such as technical Development Business and Cooperative

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Programs has discretion to award up to the Agency agrees to any proposed §§ 4284.952–4284.959 [Reserved] 10 points to an application to improve changes, the Agency will issue a revised Post Award Activities and the geographic diversity of awardees in or amended Letter of Conditions that Requirements a fiscal year. defines the final conditions under which the grant will be made. § 4284.960 Monitoring and reporting §§ 4284.943–4284.949 [Reserved] program performance. (b) Grant agreement and conditions. Grant Awards and Agreement The requirements specified in this Each grantee will be required to sign a section shall apply to grants made under § 4284.950 Award process. grant agreement that outlines the this subpart. (a) Selection of applications for approved use of funds and actions (a) Grantees must complete the project funding and for potential funding. The under the award, as well as the per the terms and conditions specified Agency will select and rank restrictions and applicable laws and in the approved work plan and budget, applications for funding based on the regulations that pertain to the award. and in the grant agreement and letter of score an application has received in (c) Other documentation. The grantee conditions. Grantees are responsible to response to the proposal evaluation will execute additional documentation expend funds only for eligible purposes criteria, compared to the scores of other in order to obligate the award of funds and will be monitored by Agency staff value-added applications received in including, but not limited to, for compliance. Grantees must maintain the same fiscal year. Higher scoring a financial management system, and applications will receive first (1) Form RD 1940–1, ‘‘Request for property and procurement standards in consideration for funding. The Agency Obligation of Funds;’’ accordance with Departmental will notify applicants, in writing, (2) Form AD–1047, ‘‘Certification Regulations. whether or not they have been selected Regarding Debarment, Suspension, and (b) Grantees must submit prescribed for funding. For those applicants not Other Responsibility Matters-Primary narrative and financial performance selected for funding, the Agency will Covered Transaction;’’ reports that include a comparison of provide a brief explanation for why they accomplishments with the objectives (3) Form AD–1048, ‘‘Certification were not selected. stated in the application. The Agency (b) Ranked applications not funded. A Regarding Debarment, Suspension, will prescribe both the narrative and ranked application that is not funded in Ineligibility and Voluntary Exclusion- financial report formats in the grant the fiscal year in which it was submitted Lower Tier Covered Transactions;’’ agreement. will not be carried forward into the next (4) Form AD–1049, ‘‘Certification (1) Semi-annual performance reports fiscal year. The Agency will notify the Regarding Drug-Free Workplace shall be submitted within 45 days applicant in writing. Requirements;’’ following March 31 and September 30 (c) Intergovernmental review. If State (5) Form RD 400–4, ‘‘Assurance each fiscal year. A final performance or local governments raise objections to report shall be submitted to the Agency Agreement (under Title VI, Civil Rights a proposed project under the within 90 days of project completion. Act of 1964);’’ intergovernmental review process that Failure to submit a performance report are not resolved within 90 days of the (6) Form SF–3881, ‘‘ACH Vendor/ within the specified timeframes may Agency’s award announcement date, the Miscellaneous Payment Enrollment result in the Agency withholding grant Agency will rescind the award and will Form;’’ funds. provide the applicant with a written (7) RD Instruction 1940–Q, Exhibit A– (2) Additional reports shall be notice to that effect. The Agency, in its 1, ‘‘Certification for Contracts, Grants submitted as specified in the grant sole discretion, may extend the 90-day and Loans;’’ and agreement or Letter of Conditions, or as period if it appears resolution is otherwise provided in a notification imminent. (8) Form SF–LLL, ‘‘Disclosure of issued under § 4284.915. Lobbying Activities.’’ (3) Copies of supporting § 4284.951 Obligate and award funds. (d) Grant disbursements. Grant documentation and/or project (a) Letter of conditions. When an disbursements will be made in deliverables for completed tasks must be application is selected subject to accordance with the Letter of provided to the Agency in a timely conditions established by the Agency, manner in accord with the development the Agency will notify the applicant Conditions, and/or the grant agreement, as applicable. A disbursement request or completion of materials and in using a Letter of Conditions, which conjunction with the budget and project defines the conditions under which the may be submitted by the grantee not more frequently than once every 30 days timeline. Examples include, but are not grant will be made. Each grantee will be limited to, a feasibility study, marketing by using Form SF 270, ‘‘Request for required to meet all terms and plan, business plan, success story, Advance or Reimbursement.’’ The conditions of the award within 90 days distribution network study, or best disbursement request is typically in the of receiving a Letter of Conditions practice. unless otherwise specified by the form of a reimbursement request for (4) The Agency may request any Agency at the time of the award. If the eligible expenses incurred by the additional project and/or performance applicant agrees with the conditions, grantee during the grant funding period. data for the project for which grant the applicant must complete, sign, and Adequate supporting documentation funds have been received, including but return the Agency’s Form RD 1942–46, must accompany each request, and may not limited to, ‘‘Letter of Intent to Meet Conditions.’’ If include, but is not limited to, receipts, (i) Information about jobs created and/ the applicant believes that certain hourly wage rates, personnel payroll or saved as a result of the project; conditions cannot be met, the applicant records, contract progression (ii) Increases in producer customer may propose alternate conditions to the certification, or other similar base and revenues as a result of the Agency. The Agency must concur with documentation. project; any proposed changes to the Letter of (iii) Data regarding renewable energy Conditions by the applicant before the capacity or emissions reductions application will be further processed. If resulting from the project;

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(iv) The nature of and advantages or require the prior approval of the § 4284.963 Grant close out and related disadvantages of supply chain Administrator. activities. arrangements or equitable distribution § 4284.962 Transfer of obligations. Grant closeout is the administrative of rewards and responsibilities for mid- wrap-up of a grant that has concluded tier value chain projects; and At the discretion of the Agency and on a case-by-case basis, an obligation of or has been terminated. Typical closeout (v) Recommendations from Beginning funds established for an applicant may activities include a letter to the grantee Farmers or Socially Disadvantaged be transferred to a different (substituted) with final instructions and reminders Farmers. applicant provided: for amounts to be de-obligated for any (5) The Agency may terminate or (a) The substituted applicant: unexpended grant funds, final project suspend the grant for lack of adequate (1) Is eligible; performance reports due, submission of or timely progress, reporting, or (2) Has a close and genuine outstanding deliverables, audit relationship with the original applicant; documentation, or for failure to comply requirements, or other outstanding and items of closure. with Agency requirements. (3) Has the authority to receive the § 4284.961 Grant servicing. assistance approved for the original §§ 4284.964–4284.999 [Reserved] applicant; and All grants awarded under this subpart (b) The project continues to meet all Dated: February 4, 2011. shall be serviced in accordance with product, purpose, and reserved funds Dallas Tonsager, 7 CFR part 1951, subparts E and O, and eligibility requirements so that the need, Under Secretary, Rural Development. the Departmental Regulations with the purpose(s), and scope of the project for [FR Doc. 2011–3036 Filed 2–22–11; 8:45 am] exception that delegation of the post- which the Agency funds will be used award servicing of the program does not remain substantially unchanged. BILLING CODE 3410–XY–P

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Part III

Department of Housing and Urban Development

24 CFR Parts 901, 902, and 907 Public Housing Evaluation and Oversight: Changes to the Public Housing Assessment System (PHAS) and Determining and Remedying Substantial Default; Interim Rule

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DEPARTMENT OF HOUSING AND Seventh Street, SW., Room 10276, I. Changes to PHAS Washington, DC 20410–0500. URBAN DEVELOPMENT A. Background on PHAS Electronic Submission of Comments. 24 CFR Parts 901, 902, and 907 The PHAS regulations codified in 24 Interested persons may submit CFR part 902 were established by a final [Docket No. FR–5094–I–02] comments electronically through the rule published on September 1, 1998 (63 Federal eRulemaking Portal at http:// FR 46596). Prior to 1998, a PHA was RIN 2577–AC68 www.regulations.gov. HUD strongly evaluated by HUD with respect only to encourages commenters to submit Public Housing Evaluation and its management operations. PHAS comments electronically. Electronic expanded assessment of a PHA to four Oversight: Changes to the Public submission of comments allows the Housing Assessment System (PHAS) key areas of a PHA’s operations: (1) The commenter maximum time to prepare physical condition of the PHA’s and Determining and Remedying and submit a comment, ensures timely Substantial Default properties; (2) the PHA’s financial receipt by HUD, and enables HUD to condition; (3) the PHA’s management AGENCY: Office of the Assistant make them immediately available to the operations; and (4) the residents’ service Secretary for Public and Indian public. Comments submitted and satisfaction assessment (through a Housing, HUD. electronically through the http:// resident survey). On the basis of these ACTION: Interim rule. www.regulations.gov Web site can be four indicators, a PHA receives a viewed by other commenters and composite score that represents a single SUMMARY: The changes implemented by interested members of the public. score for a PHA’s entire operation and this interim rule are intended to Commenters should follow the a corresponding performance enhance the efficiency and utility of instructions provided on that site to designation. PHAs that are designated HUD’s Public Housing Assessment submit comments electronically. high performers receive public System (PHAS). The interim rule makes Note: To receive consideration as public recognition and relief from some HUD 2 sets of amendments to improve comments, comments must be submitted requirements. PHAs that are designated evaluation and oversight of the Public through one of the two methods specified standard performers may be required to Housing Program. First, it amends the above. Again, all submissions must refer to take corrective action to remedy PHAS regulations for the purposes of: the docket number and title of the rule. identified deficiencies. PHAs that are Consolidating the regulations governing designated substandard performers are assessment of public housing in one No Facsimile Comments. Facsimile required to take corrective action to part of the Code of Federal Regulations (FAX) comments are not acceptable. remedy identified deficiencies. PHAs (CFR); revising certain PHAS Public Inspection of Public that are designated troubled performers regulations based on HUD’s experience Comments. All properly submitted are subject to remedial action. with PHAS since it was established as comments and communications B. Public Housing Operating Fund the new system for evaluating a public submitted to HUD will be available for Program housing agency (PHA) in 1998; and public inspection and copying between updating certain PHAS procedures to The regulations governing the Public 8 a.m. and 5 p.m. weekdays at the above Housing Operating Fund program are of reflect recent changes in public housing address. Due to security measures at the operations from conversion by PHAs to key relevance to the proper operation of HUD Headquarters building, an advance PHAs and, consequently, to PHAS. asset management. Second, this interim appointment to review the public rule establishes new regulations that Operating Funds are made available to comments must be scheduled by calling a PHA to provide assistance to a PHA specify the actions or inactions by the Regulations Division at 202–402– which a PHA can be determined to be for the operation and management of 3055 (this is not a toll-free number). public housing; therefore, the in substantial default, the procedures for Individuals with speech or hearing a PHA to respond to such a regulations applicable to a PHA’s impairments may access this number operation and management of public determination or finding, and the via TTY by calling the Federal sanctions available to HUD to address housing must be considered in any Information Relay Service, toll-free, at changes proposed to PHAS. The and remedy substantial default by a 800–877–8339. Copies of all comments PHA. regulations for the Public Housing submitted are available for inspection Operating Fund program are found at 24 DATES: Effective date: March 25, 2011. and downloading at http:// CFR part 990. Comment due date: April 25, 2011. www.regulations.gov. Subpart H of the part 990 regulations ADDRESSES: Interested persons are (§§ 990.255 to 990.290) establishes the FOR FURTHER INFORMATION CONTACT: invited to submit comments on this requirements regarding asset Claudia Yarus, Department of Housing interim rule to the Regulations Division, management. Under § 990.260(a), PHAs and Urban Development, Office of Office of General Counsel, Department that own and operate 250 or more Public and Indian Housing, Real Estate of Housing and Urban Development, dwelling rental units must operate using Assessment Center (REAC), 550 12th 451 7th Street, SW., Room 10276, an asset management model consistent Street, SW., Suite 100, Washington, DC Washington, DC 20410–0500. with the subpart H regulations. PHAs 20410 at 202–475–8830 (this is not a Communications must refer to the above with fewer than 250 dwelling rental toll-free number). Persons with hearing docket number and title. There are two units may elect to transition to asset or speech impairments may access this methods for submitting public management, but are not required to do number through TTY by calling the toll- comments. All submissions must refer so. Recent HUD appropriations acts free Federal Information Relay Service to the above docket number and title. have provided through an at 800–877–8339. Additional Submission of Comments by Mail. administrative provision that PHAs that information is available from the REAC Comments may be submitted by mail to own or operate 400 or fewer public Internet site at http://www.hud.gov/ the Regulations Division, Office of housing units may elect to be exempt offices/reac/. General Counsel, Department of from any asset management requirement Housing and Urban Development, 451 SUPPLEMENTARY INFORMATION: imposed by HUD in connection with

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HUD’s Operating Fund rule, with one principle that evaluation under the eliminating a separate resident exception—a PHA seeking PHAS indicators would continue to rely satisfaction survey. discontinuance of a reduction of on information that is verifiable by a Resident Satisfaction Surveys. A subsidy under the operating fund third party, wherever possible. PHA’s performance in the area of formula shall not be exempt from asset resident programs and participation Overview of Proposed Changes to PHAS management requirements.1 Since would have been evaluated as part of requirements in appropriations acts, The August 21, 2008, rule proposed to the project management review, thus unless otherwise indicated, apply only modify PHAS primarily to conform to eliminating the need for a separate to the fiscal year to which the the new regulations on the Public indicator on resident satisfaction and, appropriations act is directed, HUD’s Housing Operating Fund program and therefore, a separate satisfaction survey. proposed rule to revise PHAS does not the conversion by PHAs to asset The project management review would reflect this one-year provision. management, including project-based have included a subindicator that would The asset management model budgeting, project-based accounting, measure efforts to coordinate, promote, emphasizes project-based management, and project-based performance or provide effective programs and as well as long-term and strategic evaluation. Highlights of some of the activities to promote economic self- planning. For public housing, this major changes proposed to each of the sufficiency of residents, and measure represents a shift from a PHA-centric four current PHAS indicators are as the extent to which residents are management model to a model follows: provided with opportunities for consistent with the norms in the broader Physical. The physical inspection involvement in the administration of the multifamily industry. Under this model, indicator would have remained largely public housing. This subindicator PHAs must implement project based unchanged. Independent physical would have included all of the elements management, project based budgeting, inspections would have continued to be regarding economic self-sufficiency and and project based accounting. Similarly, conducted on each public housing resident participation that are included HUD funds and monitors PHAs at the project, although the frequency of in the U.S. Housing Act of 1937 (42 project level. A project can be a inspections would have depended on U.S.C. 1437 et seq.) (1937 Act) at section reasonable grouping of buildings under the scores of individual projects, not the 6(j) of the 1937 Act (42 U.S.C. 1437d(j)). an Annual Contributions Contract score for the entire PHA. For example, HUD agrees that resident input into (ACC). One of the major shifts, then, in if a specific project scored below 80 the assessment process is important. this interim rule (as opposed to the points, it would be inspected the HUD is committed to exploring resident current rule) is to isolate the following year, regardless of whether satisfaction, participation, and self- performance of individual projects. The the overall physical score for the PHA, sufficiency measures in the final rule current regulation, for example, based on all projects, was 80 points or that will follow this interim rule. provides Management Operations only higher (as is the case in the currently Accordingly, HUD seeks input from the at the PHA level, which can hide codified PHAS regulations). If a PHA’s public in the form of comments to this problem properties. The essential overall physical score were less than 80 interim rule on establishing more components of asset management are points, and one or more projects scored meaningful measures in these areas. 80 points or above, those projects that defined in the regulations in 24 CFR Capital Fund program. HUD proposed scored 80 points or above would be part 990, subpart H. to establish a new indicator, previously inspected every other year. part of the management operations C. Proposed Amendments to PHAS Financial. The financial assessment indicator, which would have measured On August 21, 2008, at 73 FR 49544, system would have been modified to a PHA’s performance with respect to the HUD proposed amendments to its PHAS include an assessment of the financial obligation and expenditure of Capital regulations. HUD proposed to retain the condition of each project. A PHA would Fund program grants. This Capital Fund basic structure of PHAS and to require have continued to submit an annual program indicator can only be measured PHAs to be scored on performance Financial Data Schedule (FDS) to HUD at the PHA level. This Capital Fund based on evaluation of four indicators: that contained financial information on program indicator, based on a physical condition, financial condition, all major programs and business requirement of section 6(j) of the 1937 management operations, and the PHA’s activities. However, for purposes of Act (42 U.S.C. 1437d(j)(1)(I)(2)), is management of its Capital Fund PHAS, the PHA would have been scored required by statute to be assessed at that program. The organization of the four on the financial condition of each level. HUD believes that this is a indicators differed from the original project, and these scores would be the separate subject from the management PHAS indicators in that PHA’s basis for a program-wide score. indicator and therefore is more Management. The current management of its Capital Fund appropriate as a separate indicator. In management operations assessment program, originally part of the addition to the changes in the four system relies on PHA submission of a management operations indicator, was indicators, discussed above, the August range of information that is self- proposed to replace the resident 21, 2008, rule proposed to modify the certified. Under the proposed rule, this satisfaction indicator. HUD proposed score adjustment for physical condition current system would have been that resident services and satisfaction be and neighborhood environment. This replaced with management reviews assessed as part of the management adjustment would have been applied to conducted of each project by HUD staff the management operations indicator on operations indicator. The August 21, (or, where applicable, HUD’s agents). a project-by-project basis rather than to 2008, proposed rule also retained the Preferably, such reviews would have the physical condition indicator. The statutory language at 42 U.S.C. 1 See, for example, section 225 of Title IV of been conducted annually, consistent Division K of the Consolidated Appropriations Act, with the standards for HUD’s subsidized 1437d(j)(K)(I)(2) states that HUD shall 2008 (Pub. L. 110–161, approved December 26, housing programs. As part of this reflect in the weights assigned to the 2007); section 225 of the Omnibus Appropriations project management review process, various indicators the differences in the Act, 2009 (Pub. L. 111–8, approved March 11, difficulty in managing individual 2009); and section 223 of the Consolidated HUD would have examined a PHA’s Appropriations Act, 2010 (Pub. L. 111–117, performance in the area of resident projects that result from their physical approved December 16, 2009). programs and participation, thereby condition and neighborhood

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environment. The application of the to develop and implement a more order to receive the full 5 points, a adjustment to the management objective management review tool, this PHA’s adjusted occupancy rate (that is, operations indicator would specifically interim rule does not include this adjusted for HUD-approved vacancies) address the difficulty in managing proposed change. This interim rule must be 96 percent or more. In individual projects, and would also provides that the management review recognition of the impact of these result in a true physical condition score will be used as a diagnostic and changes to the Capital Fund without any adjustments outside of the feedback tool. In turn, three components subindicators, this interim rule revises physical condition inspection results. that were part of the management the definition of Capital Fund-troubled. The proposed rule also included, as review—relating to tenant accounts The new definition indicates that a PHA appendices, scoring notices for the receivable, occupancy rate, and must achieve a score of at least five PHAS indicators that provided more accounts payable—will be derived from points, or 50 percent. detail on how each indicator and the PHA’s annual FDS. These three Small deregulated PHAs with fewer subindicator would have been scored. items represented 60 percent of the than 250 units will receive a PHAS Additional proposed changes to PHAS scored items on the management assessment as follows: included: review. By relying on the FDS for these • High performers will receive PHAS • Corrective Action Plans would three items, HUD can issue an annual assessments every 3 years; replace current Improvement Plans, (or bi-annual, where applicable) overall • Standard and substandard addressed in detail at 24 CFR 902.73. PHAS score for each PHA. In the case • performers will receive PHAS References to the Troubled Agency where low PHAS scores indicate assessments every other year; and Recovery Center (TARC), a program potential management problems, the • Overall troubled and Capital Fund- office within HUD to which troubled management review can aid in troubled PHAs will receive PHAS PHAs were referred for oversight, diagnosing the nature of the problem assessments every year. monitoring, or other remedial action, and determining appropriate corrective All projects that score 90 points or would be removed, since the TARC no actions. higher on their physical condition longer exists. The duties and As in the proposed rule, this interim inspections will be inspected every 3 responsibilities of the TARCs have been rule contains three items—tenant years, consistent with HUD’s transferred to and assumed by HUD’s accounts receivable, occupancy rate, multifamily housing programs. Projects field offices. and accounts payable—under the that score at least 80 points but fewer Finally, the August 21, 2008, rule management operations indicator. than 90 points will receive a physical proposed to establish, in new part 907, Because other proposed elements are condition inspection every other year. the regulations governing the not adopted by this interim rule, HUD Projects that score less than 80 points determination of, and remedies for, has rebalanced the scoring for the will receive a physical condition substantial default. The regulations remaining indicators. The proposed inspection every year. All projects in applicable to substantial default are management elements not adopted here overall troubled and Capital Fund- currently codified in HUD’s PHAS are utility consumption, turnaround troubled PHAs will receive a physical regulations. However, a determination time, work orders, security, the condition inspection every year. of substantial default is not limited to components based on unit inspections, In the baseline year, every PHA will troubled performance or violation of economic self-sufficiency, and resident receive an overall PHAS score and in all PHAS requirements. Accordingly, HUD involvement. The physical condition four of the PHAS indicators: Physical indicator has increased from 30 to 40 determined that it was more appropriate condition; financial condition; points; the financial condition indicator for substantial default regulations to be management operations; and Capital has increased from 20 to 25 points; and codified in a separate CFR part. Fund program. This will allow a the management operations indicator II. Differences Between This Interim baseline for the physical condition has decreased from 40 to 25 points. The inspections and the 3–2–1 inspection Rule and the Proposed Rule overall value of the Capital Fund schedule, as well as a baseline year for This interim rule adopts the changes program indicator (10 points) remains the small deregulated PHAs. proposed in the August 21, 2008, unchanged. proposed rule with the exception of However, the Capital Fund program In addition to these more significant provisions identified in this Section II. indicator itself has been restructured in changes, there were other minor One of the key changes to PHAS a manner that HUD believes better changes in this interim rule from the proposed by the August 21, 2008, rule tracks actual performance in respect to proposed rule. These include: was to replace the system of PHA self- the use of Capital Funds for capital 1. Mixed-finance projects will not certification for the management activities, whereas the proposed rule receive financial or management scores. operations indicator with onsite simply tracked statutory compliance. 2. The rule has been amended to management reviews, consistent with The proposed Capital Fund Program indicate that, for exigent health and monitoring practices in HUD’s Indicator gave full points for timely safety (EHS) violations, a PHA may multifamily housing programs. Many obligation and expenditure of funds abate the effect of the violation without commenters expressed concern over: under the statute, a metric that does not necessarily correcting or remedying the (1) Whether HUD would have the necessarily measure the actual use of condition. For example, a PHA may resources and/or capacity to conduct capital funds for modernization and move a family into a different unit until management reviews of all public capital needs; for example, a PHA can fire damage is repaired. housing projects every several years; transfer a portion of its Capital Fund 3. The rule has been amended to (2) possible issues of subjectivity in the grant to PHA operations. HUD believes modify the standards for Debt Service scoring of these management reviews; that success in addressing capital needs Coverage Ratio (DSCR) such that any and (3) the weights and measures will be reflected in higher occupancy project with a DSCR of 1.25 or higher assigned to the scored components of rates. This interim rule, therefore, while receives the full points. the management review. similarly providing 5 points for timely Specific scoring procedures that HUD In response to these concerns, and to obligation, introduces a new measure uses will be published separately in the provide both PHAs and HUD more time based on a PHA’s occupancy rate. In Federal Register for public comment.

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III. Key Differences Between This condition of the major census tract in IV. Public Comments Received on Interim Rule and Currently Codified which a project is located. The physical August 21, 2008, Proposed Rule 2 PHAS Regulation condition adjustment in this interim The proposed rule published on • The current codified PHAS rule applies to projects at least 28 years August 21, 2008, provided for the public regulation scores the physical, financial old; in the current CFR codification, the comment period to end on October 20, condition, management operations, and adjustment applies to 10 year old 2008. During that comment period, HUD resident service and satisfaction properties. The neighborhood made available to the public on its Web indicators. In this interim rule, HUD environment adjustment in this interim site a scoring template. In order to removes the resident service and rule applies to projects located in ensure that all commenters had an equal satisfaction indicator, as well as the census tracts where at least 40 percent opportunity to address this new resident survey, while HUD considers of the families are living below the information, HUD reopened the better means of accurately measuring poverty rate. In the currently codified comment period on November 24, 2008, resident satisfaction, tenant regulation, that adjustment applies and solicited comments through January participation, and the efficacy of where 51 percent of the families in the 8, 2009. resident self-sufficiency efforts to be immediately surrounding area live HUD received approximately 138 included in the final rule. HUD agrees below the poverty rate. comments during the first comment that resident input into the assessment • This interim rule provides period and an additional 25 comments process is important. HUD is committed during the reopened comment period. increased incentive for projects that to exploring resident satisfaction, self- Comments were from public housing- perform well on the physical inspection. sufficiency, and participation measures related trade associations, housing Projects in PHAs with 250 or more in the final rule, which will be authorities, advocacy organizations, and dwelling units that score 90 or higher on promulgated subsequent to and based individuals. This section of the on HUD’s experience with, and the their physical inspection will be preamble, which addresses the public public comments on, this interim rule. inspected every 3 years under the comments, organizes the comments by Accordingly, the agency seeks input interim rule, while projects that receive subject category, with a brief description from the public, including PHA at least 80 points but less than 90 points of the comment and HUD’s response to residents and PHAs, as well as other will be inspected every 2 years. All the comment. interested members of the public, on other projects will receive a physical Several commenters expressed their establishing more meaningful measures condition inspection every year. All support of the rule rather than raising in these areas, including suggestions for projects that are in overall troubled and issues to be addressed, including what the specific items measured might Capital Fund-troubled PHAs will support for focusing on the performance be and methods of measurement. receive a physical condition inspection • of projects, the removal of the ‘‘troubled’’ The Capital Fund indicator is added every year. designation for substandard agencies, as the 4th indicator. • and the elimination of both entity-wide • Under the interim rule, HUD has The financial condition indicator scoring and self-certifications for removed the management operations under the currently codified regulation management operations. certification as a scored element. assesses the financial condition of the Instead, the management operations entire PHA. Under this interim rule, a General Comments financial condition score for each indicator will be limited to three items Comment: A number of commenters project will be calculated, as well as a in this interim rule—occupancy rate, stated that the proposed rule was overly composite score for the entire PHA. accounts payable, and tenant accounts complex, burdensome, overly stringent, receivable, all drawn from a PHA’s • Under this interim rule, a PHA may or contrary to the Department’s goals of annual financial information. The onsite immediately abate the effect of an administrative streamlining. management review will not be scored exigent health and safety (EHS) HUD Response: As the preamble to for the management operations violation and later correct the condition, the proposed rule stated, a revised indicator. As a result, the overall under § 902.22(f). Section 902.24(a)(2) of PHAS is made necessary by the management operations indicator has the codified regulation allows only for transition of public housing’s budgeting, been reduced from 40 points to 25 correction. funding, and reporting systems from one points. that was entity-wide to one that is • The physical condition indicator • References to the former Troubled Agency Recovery Center (TARC) are project-based. Though the evaluation has increased to 40 points from 30 emphasis has shifted from the PHA as points; the financial condition indicator removed. Those former duties are now handled in the HUD field office. a whole to individual projects, the has been reduced from 30 points to 25 interim rule does not impose any more points; and the new Capital Fund The definition of a high performer regulation than what has been in place. Program indicator will be 10 points. remains the same as in the currently By eliminating the resident satisfaction • There are changes to the adjustment codified regulation. A PHA that survey, the management certification, for physical condition and achieves a score of at least 60 percent and, in this interim rule, the neighborhood environment. In the of the points available under the management review, HUD has currently codified regulation, the physical condition, financial condition, considerably streamlined the evaluation adjustment allows a total of 3 points, and management operations indicators, process. All of the data are collected one point each for 3 areas (see and at least 50 percent under the Capital from three sources—the FDS, the § 902.25(b)(1)). This interim rule Fund indicator, and achieves an overall physical inspection, and the electronic provides for an adjustment of 2 points, PHAS score of 90 percent or greater of Line of Credit Control System 1 for poor physical condition of the the total available points under PHAS, (eLOCCS). No data point in the interim project and 1 for the economic shall be designated a high performer. A rule requires any submission from a PHA shall not be designated a high PHA other than what is already 2 ‘‘Currently codified PHAS regulation’’ refers to the PHAS regulation in 24 CFR part 902 performer if it scores below the required. Since the FDS is already (Government Printing Office, April 1, 2010). threshold established for any indicator. generated by the PHA and is required by

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existing rule, by OMB A–133, and by wide score for a PHA, the proposed rule more applicable to non-public housing the Annual Contributions Contract was inconsistent with the goals of asset multifamily projects, such as tax credit (ACC), using this data to evaluate a management (with the focus on project- projects, which can have more project’s performance cannot be level performance). Another commenter amenities than public housing. considered burdensome. Moreover, stated that PHAs should be scored at HUD Response: HUD disagrees with because HUD conducts the physical both the project-level and the PHA these comments. The Operating Fund inspection and tallies the results, there level. One commenter stated that only program regulations clearly establish is no PHA data submission for this the overall score should be the PHAS that public housing shall transition to indicator. score. Some commenters stated that it is asset management, consistent with Comment: Commenters expressed duplicative to score individual projects standards and practices in multifamily concern over implementation of the on items that are PHA-wide housing. Furthermore, the physical onsite management review, which, as responsibilities, such as energy, condition standards for HUD public proposed, would have accounted for 40 security, budgeting, tracking of work housing and multifamily housing are percent of a PHA’s overall PHAS score. orders, and accounts payable. the same. In addition, multifamily Commenters expressed concern over the HUD Response: As a result of the properties are assessed by project, as capacity of HUD staff to administer Operating Fund program regulations, PHAs will be assessed under this these reviews, the specific elements to published and developed through interim rule. be scored, the weights and measures negotiated rulemaking, both HUD and Comment: Several comments associated with those elements, PHAs have been transitioning to asset expressed concern that it was either too potential subjectivity, and the overall management, with project-level soon for HUD to change PHAS, overall, weight associated with this indicator. budgeting, funding, accounting, or that it was premature to begin HUD Response: In response to public management, and oversight. At the same measuring the performance of projects. comments, HUD has removed the time, Section 6(j) of the 1937 Act HUD Response: HUD disagrees with management review as a scored element requires HUD to develop a system to this comment. The transition to project- in this interim rule. Instead, the measure the management performance based budgeting, funding, and management operations indicator will of whole PHAs, along with processes for accounting is in its 5th year, with full be limited to three items in this interim designating troubled PHAs. This interim implementation expected in 2011. An rule—occupancy rate, accounts payable, rule balances the need to provide for appropriate mechanism is needed for and tenant accounts receivable, all measurements at the project level, as measuring the management performance drawn from a PHA’s annual financial required for asset management, with the of projects. Moreover, it would be a information. As a result, the overall need to designate troubled PHAs, as burden on PHAs, which are management operations indicator has required under the statute. transitioning to asset management, to been reduced from 40 points to 25 Comment: Commenters suggested that retain the existing reporting systems points, with the remaining points the proposed rule should provide for a established under the PHAS regulations, assigned to the physical condition mechanism for adjusting scores (both prior to amendment by this interim rule, indicator and the financial condition overall and for particular components) which focus on entity-wide indicator. as a result of funding shortfalls, noting performance. HUD still regards the onsite that operating subsidy proration levels Comment: Several commenters management review as critical to its task were between 84 percent and 90 percent expressed concern over whether HUD’s of effective oversight of the public from 2006 to 2009. Commenters systems will be ready to implement the housing portfolio, as is the case in suggested various formulas for this new scoring methodologies and the multifamily housing. Under this interim adjustment. different data collection efforts. rule, management reviews will not be HUD Response: HUD’s position is it HUD Response: All data elements scored but instead will be used for both was not the intent of Congress, in necessary for scoring are in place and compliance (not scored) and as a establishing section 6(j) of the 1937 Act, currently captured through the Office of diagnostic instrument for performance. to make allowances for funding, as the Public and Indian Housing information Comment: Commenters requested statute makes no mention of funding technology systems, REAC’s physical clarification regarding how the allowances. The statute does, however, inspection system, eLOCCS, the Public proposed rule would apply to Moving- mention adjustments for physical Housing Information Center (PIC), or the to-Work (MTW) agencies, including condition and neighborhood FDS, greatly simplifying administrative inspection protocols, information environment (see 42 U.S.C. systems. submissions, energy conservation, 1437d(1)(I)(2)), indicating that Congress Comment: Commenters requested that energy audits, and capital fund. did intend for adjustments based on the implementation be postponed, and HUD Response: MTW agencies are those items, but did not intend for requested that PHAs have at least one subject to their respective MTW adjustments based on funding levels. year from date of publication to effective agreements. In most cases, the MTW Moreover, HUD believes that it is the date, or some other enlarged time agreements require MTW agencies to primary intent of the system to provide period. submit annual financial information and an indication of the performance of HUD Response: HUD has not adopted be subject to the same standards and public housing, regardless of funding this recommendation. There is no protocols for physical inspections, levels, which is consistent with the adverse impact on PHAs in terms of management reviews, and obligation/ current rule. Finally, it should be needing to modify reporting systems in expenditure deadlines as non-MTW observed that a number of PHAs have order to comply with the various agencies. However, the MTW achieved high performance ratings with scoring elements under this rule. PHAs agreements allow MTW agencies the current funding levels. are already subject to the independent option of carrying over their pre-MTW Comment: Some commenters stated physical inspections, and the PHAS scores or being scored under the that performance standards based on information that HUD will use to score applicable PHAS regulation. multifamily housing are inappropriate the financial condition and management Comment: Several commenters for public housing, or that the rule operations indicators is already indicated that, by producing a program- otherwise uses inappropriate standards contained within the FDS that PHAs

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began submitting with fiscal years limited financial data submitted on the Operating Fund program are outside ending June 30, 2008. Scoring for the these projects, mixed-finance projects the scope of this rulemaking (however, Capital Fund program indicator is taken will not receive a financial condition or section 223, Div. A, Tit. II of the 2010 directly from eLOCCS and the PIC. management operations score. Mixed- Consolidated Appropriations Act, Pub. Moreover, the information that HUD finance projects are, by definition, L. 111–117, states that PHAs ‘‘that own will be using to generate PHAS scores owned by an entity other than the PHA. and operate 400 or fewer public housing is similar to the information scored that As such, PHAs report only ‘‘pass- units may elect to be exempt from any has traditionally been scored under the through’’ activity on the FDS— asset management requirement imposed currently codified PHAS regulations, essentially, the subsidy earned and the by the Secretary of Housing and Urban only with an emphasis on project-level subsidy transferred. HUD does not Development in connection with the data. receive detailed information on operating fund rule’’ (except for stop- Comment: Many commenters operating revenues or operating loss PHAs)). Additionally, even for recommended that the period of expenses on mixed-finance projects. PHAs that are exempt from asset assessment for the management review Because HUD does not include detailed management and which treat their conform either with the PHA’s fiscal financial information on mixed-finance entire public housing portfolio as one year or with calendar years. projects, it cannot determine occupancy, project, HUD still has a responsibility HUD Response: Under the August 21, accounts payable, or tenant accounts for monitoring performance. Finally, 2008, rule, HUD proposed that certain receivable through the FDS. As a result, although PHAs may also be reviewed elements on the management review mixed-finance projects will also be from time to time as to certain criteria would be assessed as of the most excluded from the management based on their participation in other recently completed month or as of the operations indicator. programs, PIH must also do the most recent 12-month period, but not HUD specifically seeks comment on assessment of PHAs required by statute necessarily the most recently completed how best to include mixed-finance (42 U.S.C. 1437d(j)). fiscal year. Commenters generally projects under PHAS. Comment: A commenter asked for preferred that the assessment year Comment: A number of comments clarification as to whether the term always coincide with the PHA’s fiscal were received requesting that certain ‘‘project,’’ when used in the rule, also year. Because HUD will not be scoring fair housing requirements, including meant ‘‘asset management project’’ as the management review, and because accessibility requirements and fair defined under PIH Notice 2006–10. The both financial and management housing training for PHA staff, be same commenter asked for HUD to operations data will be derived from the included as part of the management define ‘‘statistically valid sample’’ and FDS and possible additional points due review. One commenter stated that ‘‘crime-related problem.’’ Another to the physical condition, neighborhood existing methods of enforcement should commenter asked to remove ‘‘decent, environment (or both) of a project, the suffice. safe, and sanitary housing’’ and replace assessment year under this interim rule HUD Response: Although, in the it with ‘‘affordable.’’ will now coincide with the PHA’s fiscal operation of public housing, PHAs must HUD Response: When HUD first year, as is the case under the currently adhere to various fair housing required conversion to asset codified PHAS regulations, which is not requirements, the oversight of those management, HUD asked PHAs to changed by this interim rule. Also, requirements is the responsibility of identify ‘‘asset management projects,’’ or using fiscal years is an accepted HUD’s Office of Fair Housing and Equal AMPs, so as to differentiate with business practice. HUD will use the Opportunity (FHEO). Only FHEO, for ‘‘developments’’ as listed in the PIC current fiscal year data from the FDS example, can issue fair housing (Inventory Management System (IMS)). and eLOCCS and the latest physical findings. HUD is continuing to work AMPs are now simply referred to as condition score to arrive at the PHAS with FHEO, and solicits input from the ‘‘projects’’ and are identified as so in score. public, to better determine what data PIC. HUD has added the definition of Comment: Several commenters elements, if any, that PIH staff can ‘‘statistically valid sample’’ in § 902.3 of requested clarification as to how the obtain during onsite reviews, and the interim rule. Since the management proposed rule would apply to mixed- through other means, that can assist review under this interim rule will not finance projects or recommended that FHEO in its monitoring functions and to be used to score management mixed-finance projects be exempted affirmatively further fair housing. operations, it is not currently necessary from PHAS, or that specific elements, Comment: Some commenters to define ‘‘crime-related problem.’’ This such as financial condition or recommended that the regulations be interim rule does not change the phrase management condition scoring, not be changed to increase the exemption from ‘‘decent, safe, and sanitary,’’ which is a applied to mixed-finance projects. With asset management (currently fewer than statutory standard for HUD-assisted respect to financial condition, 250 public housing units). Other housing. commenters stated that there is a commenters stated that PHAs that are Comment: Several commenters conflict between generally accepted exempt from asset management should disagreed with the proposal that a PHA accounting principles (GAAP) and the not be subject to PHAS. One other could not be high-performing if 10 way mixed-finance projects are funded commenter stated that PHAs already percent of its units fail the physical, and organized. subject to inspection by other agencies financial, or management indicators. HUD Response: This interim rule should be exempt from PHAS. HUD Response: HUD agrees with this clarifies that mixed-finance projects will HUD Response: The regulatory comment, and has determined to retain continue to be subject to the exemption for small PHAs is part of the the definition of high performer that is independent physical inspections. Operating Fund program regulation at in the currently codified regulation and These inspection scores will then be 24 CFR part 990. Although, as noted not add another layer of complexity to included with other physical inspection earlier in this preamble, the Public the definition. scores to determine the PHA’s overall Housing Operating Fund program Comment: Several commenters stated physical condition score. However, regulations are relevant to changes to that certain classifications of PHAs because of the special nature of mixed- PHAS, this rulemaking is focused on should be subject to less frequent PHAS finance projects, especially in the changes to PHAS only, and changes to scoring, either because of their size

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(small PHAs) or recent performance. PHAS score. A small PHA that is a high inspection requirement, and if a Several comments suggested that HUD performer will receive a PHAS resident does not comply, a PHA may modify the inspection frequency for assessment every 3 years; a small PHA initiate eviction proceedings for public housing, consistent with the that is a standard or substandard PHA noncompliance with the lease. standards in HUD’s multifamily housing will receive a PHAS assessment every Comment: One commenter programs, or alternatively that the size 2 years; and all other small PHAs, recommended that HUD eliminate the of the PHA should not dictate the including overall troubled and Capital physical assessment subsystem (PASS) frequency of inspections, but rather that Fund-troubled, will receive a PHAS as too costly. frequency should be based on achieving assessment annually. All overall HUD Response: HUD disagrees. The a certain score. With respect to the troubled projects receive a physical independent physical inspections, management assessment, a commenter inspection annually. which commenced in 1998, have states that if a PHA meets certain goals, Physical Condition Indicator provided an essential tool for HUD in it should be exempt from the following monitoring its public housing and year’s management assessment. Comment: Commenters stated that the multifamily portfolios and in raising the HUD Response: HUD agrees and has physical inspection scoring process is standards of operations with respect to changed the overall PHAS scoring overly complex, difficult to understand, maintaining the physical condition of frequency in response to these and should be simplified. Another public housing properties. The costs of comments for physical condition commenter suggested that the physical HUD’s physical and financial oversight inspections and the Deregulation for inspections be modified to capture operations amount to a little more than Small Public Housing Agencies (68 FR actual physical needs. Another 0.3 percent of the Capital Fund 37664, June 24, 2003) (small public commenter stated that HUD was appropriation, of which these costs are housing agencies are those with fewer changing the physical inspection an appropriated administrative offset. standards to a tougher standard than than 250 dwelling units). With this rule, Comment: One commenter suggested HUD is changing the frequency of currently used. HUD Response: The physical that units being used for non-residential physical inspections, adopting HUD’s purposes, such as for community multifamily housing standard. Under inspection standards, established under 24 CFR part 5, are outside the scope of services, be exempt from the physical the currently codified regulations, a inspections. One commenter suggested PHA’s projects are inspected biennially this rulemaking. These standards are the same for public housing and HUD’s that the site not be included as an (every 2 years) if they achieve a physical inspectable area. condition score of 80 points or higher. multifamily housing programs. The HUD Response: HUD disagrees. First, In contrast, in HUD’s multifamily physical inspection system is designed 24 CFR part 5, subpart G, requires the programs, projects with a physical to assess the livability of a property to inspection of common areas, the site, condition score of 90 points or higher the aforementioned ‘‘decent, safe, and and dwelling units. Secondly, any are inspected triennially (every 3 years). sanitary’’ standard. It is not designed to aspect of a project that may be used by The interim rule has been modified to assess or evaluate the remaining useful assisted tenants should be subject to reflect HUD’s multifamily score-based life of building and property inspection, as deterioration of any inspection frequency. As a consequence, components. HUD plans to update its a public housing project scoring 90 requirements related to the Physical portion of the project, including points and above will be inspected Needs Assessment in a separate community rooms and common areas, triennially; a public housing project rulemaking, which should address the affects the whole project. scoring less than 90 and at least 80 concern raised by the comment Comment: One commenter suggested points will be inspected biennially; and regarding physical needs. The standards that HUD create a special adjustment a public housing project scoring below for physical inspections have not been factor due to the age of a project. 80 points will be inspected annually changed by this interim rule. HUD Response: The currently (known as ‘‘3–2–1’’). Previously, HUD Comment: Several commenters codified PHAS regulation provides for was concerned that extended periods objected to PHAs being penalized when two adjustments—physical condition between inspections resulted in a tenant refuses or impedes access to a and neighborhood environment (PCNE). significant declines in inspection scores; unit, thereby preventing the The PCNE adjustment is based on a however, recent data for public housing independent inspector from inspecting statutory requirement at 42 U.S.C. properties that scored 90 points or the unit, and indicated that these 1437d(j)(1)(I)(2). Under the currently higher does not show any significant situations are beyond a PHA’s control, codified regulation, PHAs apply for drop-off in scores when those projects or that a pattern of noncompliance these adjustments through their are inspected triennially. HUD will rather than one incident should be management operations certification, continue to monitor the interval data to required to warrant a penalty. which are calculated using information ascertain that this change does not HUD Response: The prior PHAS from HUD data systems applied to the result in adverse effects. Further, if a regulation at § 902.24(d) and at physical condition score. Under this management review or some other event § 902.20(f) states that all PHAs are interim rule, PCNE will be applied to (e.g., multiple Exigent Health and Safety required by the Annual Contributions the management operations indicator (EHS) issues) should cause HUD to Contract (ACC) to provide HUD or its score. Moreover, PCNE is based on: (1) believe that the project is in need of a representative with access to its projects Age of the property, and (2) location, physical inspection, it may so schedule and to all units and appurtenances in which accommodates both the one at its sole discretion. Likewise, HUD order to permit physical inspections. commenter’s concern as well as HUD’s may extend the time between This provision is now at § 902.20(f) in statutory mandate. inspections for cause as HUD this interim rule, and the substance was Comment: Several commenters determines. not changed. HUD does not agree that regarded the physical inspections as With this rule, HUD is providing such situations are beyond a PHA’s being too subjective, citing instances of additional relief to small PHAs that are control because it is the responsibility of large variations in scores (depending on deregulated and is basing the frequency a PHA to ensure that its residents are the inspector), and stated that the of PHAS assessments on the overall aware of the physical condition appeals process was too cumbersome.

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HUD Response: Over the past 12 flexibility, which should address the items noted in the physical inspection years, HUD has invested significant expenditure issue. As for other report are issues of ownership or code resources to assure consistent deficiencies, the 3 days for an ‘‘A’’ is the enforcement that are: (1) Outside of the application of established standards, average, and HUD believes that this is PHA’s property; (2) owned and including a team of HUD ‘‘quality reasonable for a high performing PHA. maintained by another entity (such as a assurance’’ inspectors. While always Comment: A commenter stated that municipality); or (3) items normally striving to continue to improve the § 902.26(a)(4) (triple deduction for expected to be code violations (e.g., accuracy of its inspections, HUD uncorrected EHS deficiencies that the window security bars) are permitted by believes that the inspection process PHA had certified were corrected) is the locality. These database adjustments provides a reasonable indication of the overly harsh and seems intended to are permanent once a PHA goes through physical condition at the time of dissuade PHAs from availing the initial process and submits the inspection of each project. Of course, themselves of their right to appeal and justifying documentation, and when conditions can vary from year to year. given the subjective nature of granted, are automatic for the next Additionally, HUD has established a inspections. inspection. Other database adjustments, process of appeals. HUD is required by Response: The triple penalty such as units undergoing statute, 42 U.S.C. 1437d(j)(2)(A)(iii), to referenced in this section is not related comprehensive modernization, establish procedures for appealing a to a PHA’s right to appeal; rather, it is rehabilitation or conversion, are designation of ‘‘troubled.’’ HUD’s a penalty for a false statement to HUD. temporary. To the extent that a unit’s appeals process has been in existence In general, false statements to the status carries over from one inspection since 1998. The appeals process is, in government are often punished harshly to the next, the temporary adjustment fact, quite streamlined and uses a bare in order to deter such behavior. The must be re-verified. Due to the fact that minimum of procedural requirements. PHAS system relies heavily on PHAs the field office is required to verify a For example, an appeal is initiated by a correctly certifying information and on PHA’s request for a database adjustment simple written request. following through with promised based on a PHA’s supporting Comment: Several commenters asked repairs. documentation, the inspector cannot Comment: Several commenters that HUD modify the method of make an adjustment while on-site. Since suggested that PHAs should be able to scheduling inspections to allow more the physical inspection of a unit is a flexibility for PHAs. challenge EHS deficiencies. HUD Response: A PHA may always snapshot in time, if maintenance work HUD Response: The scheduling of is in progress during the inspection of inspections is part of the Reverse challenge an inspector’s determination of what constitutes an EHS issue. a unit, the physical condition of the unit Auction Program that is not part of the is recorded in the inspection report. PHAS rule. Physical inspection However, such a challenge does not remove the PHA’s obligation to correct Accordingly the PHAS regulations have procedures call for adequate notice to not been changed in this regard. the PHA. Inspectors are encouraged to or abate the deficiency within the time However, to be consistent with be flexible when the PHA expresses required by the regulation. EHS multifamily regulations, the time frame insurmountable difficulties in meeting violations are scored, with the exception for requesting database adjustments has the inspection date. However, of smoke detectors, and, therefore, been increased to 45 days. inspectors are not obligated to change properly belong in the PHAS Comment: Several commenters inspection dates, and at times cannot do regulations. A PHA also has the option suggested various clarifications in the so because of their workload and the of requesting a technical review or ‘‘definitions’’ related to physical need to complete inspections in a timely submitting an appeal if the PHA inspections, such as project area versus and efficient manner. The PHAS believes that the inspector was in error. building area, normalized sub-area regulations were not changed in Comment: Several commenters stated weight, and how scattered sites are response to this comment. that it is too difficult and time Comment: Several commenters consuming to obtain database scored in the building area score suggested that PHAs have the option to adjustments and changes. Commenters calculation, project area score ‘‘abate’’ EHS violations, rather than to stated that requiring PHAs to annually calculation, and property score correct or repair them within 24 hours. file the same requests adds another layer calculation. HUD Response: HUD agrees that this of bureaucracy and HUD should be HUD Response: HUD has clarified the is a reasonable differentiation. required to actually make a permanent definitions related to physical Consequently, this interim rule adopts adjustment to its database for items that inspections, as appropriate, in the the following language in § 902.22(f) on do not belong to the PHA. The physical condition scoring notice. EHS deficiencies, ‘‘The project or PHA paperwork involved in requesting a Comment: The physical inspection shall correct, remedy, or act to abate all database adjustment from the HUD field standards should be weighted more EHS deficiencies cited in the deficiency office can be unnecessarily time toward assuring major capital systems report * * *.’’ consuming. The inspector should be are not neglected. Comment: Commenters stated that the given the authority to make an onsite HUD Response: The elements scored 72-hour deadline for non-exigent health adjustment in cases that are clearly by PHAS are statutory, and related to and safety deficiencies, and the 24-hour warranted. Also, because maintenance the ongoing physical condition and timeline for EHS, are too short. The does not automatically stop when an management of public housing projects deadline for EHS could result in a PHA inspector arrives, ongoing maintenance and PHAs as a whole. Major capital having to do emergency procurement, work should not reflect negatively on a systems are addressed in the Physical which will increase costs. PHA’s overall rating, but should be Needs Assessment (PNA). HUD Response: EHS deficiencies are, noted as an adjustment by the inspector. Comment: Several commenters by definition, ones that pose a danger to HUD Response: There has been a disagreed with the use of contractors for tenants and so must be corrected or mechanism in place since 1998 for inspection, stating that HUD field office abated quickly. Adding the option to making database adjustments. HUD personnel know the local communities abate the deficiencies and subsequently notes that PHAs are required to present and have an interest in improving the do a final repair gives PHAs more compelling evidence that deficient projects.

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HUD Response: The use of contractors score, because audited financial those liabilities that are due within the is within HUD’s administrative information has an assurance of next 12 months. discretion. reliability that is important for those The MENAR measures a project’s Comment: A commenter asks whether PHAs where audited information is ability to operate using its net available, HUD is considering changing the required, as a greater amount of funding unrestricted resources without relying understanding that smoke detectors do is involved, and such audits are on additional funding. This ratio not affect the overall score. required under OMB Circular A–133. compares the adjusted net available HUD Response: No, HUD is not PHAs that expend less than the A–133 unrestricted resources, such as cash, changing that understanding. threshold amount, currently $500,000, receivables, and investments, to the Financial Condition Indicator are not required to have an audit average monthly operating expenses. performed. However, PHAs that The result of this calculation shows how Comment: One commenter indicated received operating subsidy for an audit many months of operating expenses can that a PHA should receive bonus points are required to have a non-A–133 audit be covered with currently available, under the financial condition indicator performed. Accordingly, the PHA will unrestricted resources. Because MENAR ‘‘ ’’ for a clean independent audit. select a non-A–133 audit when is a measure of reserve adequacy, HUD Another commenter stated that there submitting to Financial Assessment views one month’s reserves, a MENAR was a conflict, in terms of timeframe for Subsystem—Public Housing (FASS– of 1.0, as a minimum adequacy for submitting audits, between the PH). which minimal points are awarded. The proposed rule and the Single Audit Act. The interim rule is clear that PHAS greater the adequacy of reserves, the HUD Response: A clean, independent higher the MENAR, and the greater audit is a minimum acceptable measures the financial condition of projects. It does not score the Central number of points awarded. performance standard for any financial Both QR and MENAR specifically entity, including PHAs. Bonus points Office Cost Center (COCC), the PHA’s operation of a Section 8 voucher exclude Capital Fund Financing will not be awarded simply because a program short term liabilities from their PHA maintains its books and records program, any other PHA program, or a PHA’s business activities. calculations. As to underfunding, properly. There is no conflict between funding levels for PHAs are determined Comment: One commenter stated the proposed rule, and now this interim by Congress. HUD declines to ‘‘prorate’’ there is a conflict between §§ 902.60 and rule and the requirements of the Single these measures. All PHAs are subject to 902.62 regarding the deadlines for filing Audit Act, because both require the the availability of appropriations, and financial audits, with § 902.60 implying submission of a PHA’s audit within 9 PHAs that make the most efficient use that a 9-month deadline for audited months of a PHA’s fiscal year end. HUD of their available resources will, and financial statements can be deferred and can waive the submission of audited should, score the most points under § 902.62 stating that it cannot. information to HUD, but it cannot waive these indicators. As a result, the QR and the PHA’s submission of audited HUD Response: The commenter the MENAR have not been changed by information to the Federal Audit misunderstands the waiver of deadlines this interim rule. Clearinghouse, which is required by the provision. The only deadlines that may However, HUD will consider Single Audit Act and OMB Circular be waived are those other than the revisions to the QR metric in the final A–133. 9-month deadline for the audited rule subject to these guidelines. The Comment: Several commenters financial statement under the Single responsible maintenance of operating requested greater clarification on the Audit Act, such as the financial reserves is a critical component of three scored elements, Quick Ratio (QR), statements required under 24 CFR part effective property management. Scoring Months Expendable Net Assets Ratio 5, subpart H. for the QR subindicator should (MENAR), and the Debt Service Comment: Several commenters acknowledge the fine line between Coverage Ratio (DSCR), under the believed that the financial condition adequate and excessive reserve levels. financial condition indicator, whether standards should be modified. Others HUD is concerned that projects that they will only be applied to the public commented that the standards for the maintain excess reserves may not be housing program, and whether scores DSCR were too high (a project would providing adequate services to its will be based on audited or unaudited need a DSCR of 2.0 to receive full residents or effective property statements. points). One commenter stated that maintenance. HUD will continue to HUD Response: The financial MENAR and QR should be prorated to explore ways in which the maintenance condition scoring notice provides account for underfunding, and provided of appropriate operating reserves can be further clarification as to how the examples. One commenter questioned encouraged through the final PHAS subindicators under financial condition the fact that bad debt is removed as a rule. However, the public is advised that are scored. All PHAs will receive scores separate element in this interim rule. a different measurement tool may be on the submission of the unaudited HUD Response: The QR and the used, or, if HUD retains the QR, that FDS. For those PHAs that expend more MENAR are very similar to the Current HUD may explore how it should be than $500,000 in federal funds and Ratio and the Months Expendable Fund tightened to recognize that high QRs where audited information is required, Balance that are used in the currently might not indicate effective property financial condition indicator scoring codified regulation, with the major management. HUD invites the public to may be revised based on the audited change being made by this interim rule comment on these and other issues submission. The score based on the is that they are applied to public regarding the QR. audited information will replace the housing projects and rolled up to reflect The DSCR is the ratio of net operating score based on the unaudited FDS a PHA’s public housing financial income available to make debt because audited information is more activity. payments, to the amount of the debt reliable as the audit is performed by a The QR compares quick assets to payments. This subindicator is used if third party that attests to the current liabilities. Quick assets are cash, the PHA has taken on long-term information. HUD does not agree that it assets, receivables, and investments that obligations. should ignore the audited financial are easily convertible to cash and do not It was not the intent of Congress, in information in computing the PHAS include inventory. Current liabilities are establishing section 6(j) of the 1937 Act,

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42 U.S.C. 1437d(j), to make allowances change to asset management. Peer HUD Response: HUD disagrees. The for funding, because the statute makes grouping is based on the size of the PHA current management operations no provision for funding allowances. as a function of the number of units it certification does not capture data on Bad debt is included in the tenant administers, along with an adjustment individual projects. accounts receivable indicator in the for geographic location. Peer grouping, Comment: Several commenters Management Operations component. in other words, was a result of the fact regarded the 40 points assigned to the HUD agrees that the standards that entire PHAs were being scored, and Management Operations Indicator as originally proposed for DSCR were too there had to be some way to account for disproportionally high. high and has modified the scoring for differences among PHAs that could HUD Response: Because HUD is not DSCR such that any project with a DSCR affect their financial score. However, scoring the management review and is, of 1.25 or higher receives the full points. now that financial scoring is being done instead, evaluating the management This standard conforms to Fannie Mae’s on an individual project basis, all operations from discreet data from a Tier 2 underwriting specifications as projects are essentially similar and project’s FDS (occupancy, tenant well as Freddie Mac’s affordable judged by the same criteria and peer accounts receivable, and accounts multifamily mortgage requirements. grouping is no longer required. payable), at this interim rule stage, HUD HUD specifically seeks public Comment: A commenter suggested has changed the scoring weights as comments on this issue. that PHAs be provided with an follows: Comment: One commenter stated additional 30 days to submit unaudited Physical Condition—40 disagreement with the way the proposed financial statements. Financial Condition—25 rule would address differences between HUD Response: HUD disagrees. Management Operations—25 unaudited and audited financial audits Although HUD provided extra time for Capital Fund—10 by making an adjustment under PHAs to submit unaudited financial Comment: Several commenters § 902.64(a), in that the proposed rule statements during the first year of suggested changes to the 3 elements in used as an example a downward conversion to asset management, a PHA the management operations indicator adjustment only. This commenter also should be able to submit unaudited (i.e., occupancy, tenant accounts stated that PHAs that are exempt from statements within 2 months, as is the receivable, and accounts payable) that providing audited financial statements case under the PHAS regulations that will be scored. Commenters suggested ‘‘ ’’ could be treated differently from PHAs are currently codified. that there are too many variables that that file both audited and unaudited can impact accounts payable, which statements, and that financial scores Management Operations Indicator render its measurement moot, and made should be based entirely on the audited Comment: A number of commenters various suggestions for the percentage of statements only if a PHA files both. stated that there should be no onsite accounts payable indicator, including Response: This interim rule revises management assessment, stating that it different scoring and clarification to the the language in § 902.64(a)(1) to simply is too costly or logistically difficult. applicable time frame. Similar state that scores may be adjusted in the HUD Response: As noted in response comments were received relative to rent case of significant differences. However, to the general comments, HUD is not collections (tenant accounts receivable HUD does not agree with the commenter scoring the onsite management review, in the interim rule). One commenter that unaudited results should be pending further study. However, given suggested that this element be scored completely disregarded. Audited results the extensive public comment on many not based on actual performance but are an important check on the accuracy aspects of the management review, HUD based on efforts undertaken. of unaudited results, and if the PHA is wishes to further test the management HUD Response: HUD has not made following proper accounting practices, review mechanism as a diagnostic and this change in the interim rule in there should not be significant feedback tool. response to these comments. HUD differences. Comment: One commenter suggested disagrees that there are too many Comment: Several commenters that PHAs not be evaluated based on variables that can impact accounts believed that HUD should retain the individual projects but based on the payable because all of the variables ‘‘peer grouping’’ aspect of financial public housing program as a whole. cited by the commenters are fully condition scoring, as exists under the HUD Response: HUD disagrees. within the management purview of the currently codified regulation. Project-based evaluation is fundamental project and/or PHA. It is a management HUD Response: HUD disagrees. In its to asset management. responsibility to arrange for vendor multifamily housing programs, HUD Comment: Commenters stated that the services, monitor the work, and make does not provide any adjustment in the management assessment scoring notice payment. Such arrangements are financial assessment of a project is overly complex, not streamlined, and essential to managing a multifamily real because the project is owned by a ‘‘large’’ seeks too much information. One estate enterprise. A well-managed property owner or because the project is commenter suggests removing the non- property or PHA should already be located in a certain area. A project is scored areas. tracking accounts payable. Therefore, financially stable because it meets or HUD Response: HUD has significantly HUD’s measurement under PHAS exceeds certain basic thresholds that are reduced the scored portion of the should not represent a burden to the generally accepted in HUD multifamily management operations indicator in this PHA. asset management. Peer grouping, as it interim rule. The management review HUD disagrees with the comments on has existed under scoring notices mechanism will be further tested by rent collection. It is a standard pursuant to the currently codified PHAS HUD to record non-scored site visits by multifamily housing practice that rule (an explanation of peer grouping HUD field staff to public housing performance is measured by actual appears in the July 17, 2006, 2006 projects. For that use only, the review collections, not by efforts initiated. HUD financial condition scoring notice at 71 mechanism may include scored and has not made this change at this interim FR 40535, first column), was proposed non-scored items. rule stage. to be removed in the August 21, 2008, Comment: One commenter suggested Comment: Several commenters stated proposed rule and is removed in this that HUD retain the current that the standard for denial of admission current rule as a consequence of the management operations certification. based on ‘‘reason to believe’’ that the

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applicant is using illegal drugs or is Commenters stated that landscaping unclear what the consequences would abusing alcohol would be subject to components were vague. Some be if there were a minor reduction in legal challenge. commenters had suggestions for changes turnaround time, for instance, from 2 to HUD Response: Under this interim to the appearance and market appeal, 3 days. rule, the security subindicator is no window treatment, and institutional Comment: A number of commenters longer scored. A review of security, appearance components. stated that the scoring standards including denials of admission based Comment: Commenters stated that the vacancy rate and vacancy turnaround upon standards mandated by federal security component should not be times were too stringent and suggested law and previously promulgated HUD scored for various reasons. Commenters various revisions, arguing that there are regulation, will still be included in stated that PHAs have no ability to factors outside the PHA’s control, too protocols for public housing onsite police crime; that it would be many points were assigned, and more management reviews per the burdensome on police agencies to strict than in the private sector. As to requirements of 24 CFR 960.204, ‘‘Denial generate the required statistics; that the vacancy turnaround time, one of admission for criminal activity or component cannot be scored in commenter stated that small PHAs drug abuse by household members.’’ scattered site developments; and that would have particular issues meeting Comment: Several commenters stated the standards used are overly subjective. the standard as well as other that the proposed management Some commenters state that since PHA maintenance obligations. operations indicator for accounts developments are often sited in high- Comment: Several commenters stated payable is redundant because the crime areas, they should be scored on that economic self-sufficiency should independent audit should or does programs they have implemented to not be scored, because it is outside a capture that and other information, or prevent crime and not on results, or on PHA’s control, there is no funding or that the indicator is not useful, is overly matters within the control of the PHA. staffing allocated to self-sufficiency, it is strict, or is otherwise not needed. Some HUD Response: These components not a program requirement, it is a social commenters stated that HUD’s own will be subject to further consideration service function not appropriate for funding issues are the source of to create strong and appropriate policies PHAs, and including the standard may problems in this area. in this area and the capability to cause PHAs to favor higher-income HUD Response: The management measure efforts in ensuring a safe tenants or impose work requirements. operations subindicators being environment for public housing Some commenters suggested for changes evaluated in the interim rule residents. Through this interim rule, to the self-sufficiency component, (occupancy, tenant accounts receivable, HUD solicits additional public including aligning the standard with the and accounts payable) are not subject to comments on the security component Section 8 Management Assessment A–133 compliance requirements. HUD and whether appearance measures are Program (SEMAP) and using the believes that the inclusion of accounts appropriate and, if so, how they can best component only for bonus points. payable in the PHAS score properly be measured. Comment: One commenter stated that reflects effective property management Comment: Commenters stated that the the management operations assessment practices. As noted elsewhere in this applicant screening component should should include a component to assess preamble, the timely payment of vendor not apply, stating that scoring this civil rights compliance with respect to invoices is a function fully within the element would place an undue burden admissions, occupancy, accessibility, purview of a property’s management, on the PHA, or sought clarification on and other civil rights-related program and that a surplus of accounts payable how it is scored. One commenter stated requirements. is generally recognized in the property that because it is a statutory requirement Comment: Several commenters stated management industry as a prime it should not be scored. that the energy conservation and utility indicator of a potentially or actually Comment: A number of commenters consumption component should not be troubled property. Further, and also stated that the proposed rule improperly scored, because of funding issues, noted elsewhere in this preamble, HUD handles work order turnaround time. vagueness in the standard, or timing does not consider funding issues Many commenters stated that the 3-day issues involving the required energy relevant to scoring under this rule. turnaround time to receive an A grade audit. Comment: A number of commenters is unrealistically short. Commenters Comment: Several commenters stated opposed the ‘‘appearance and market stated that the rule improperly that the preventive maintenance appeal’’ indicator, and other aspects of prioritized tenant-generated work component should be removed. the management operations indicator orders, which are not always the most Comment: One commenter stated that such as whether a property looks urgent. Commenters stated that the rule the unit inspections component should institutional, as too subjective, did not take into account that small be revised to allow for alternative duplicative of the physical inspection PHAs might not have the necessary staff inspection protocols. indicator, or both. In addition, to meet the required deadlines. Comment: Several commenters stated commenters stated that criteria related Commenters stated that work order that the time provided for clearance of to signage, graffiti, boarded up turnaround might be at the expense of prior management findings in the windows, window treatments, long-term maintenance items, and that proposed rule is too short. landscaping, paved surfaces, dumpsters, the relative scoring between the two HUD Response: HUD agrees that the and trash cans, were too difficult to items should be adjusted. Commenters management review, as proposed, enforce, unfair in their application, and stated that funding and staffing contains a number of subjective overly subjective. As to signage and reduction should be taken into account. elements. In response to public graffiti, commenters noted that this Commenters suggested various less concerns, and to provide both PHAs and component would not apply well in stringent scoring guidelines for work HUD more time to develop and scattered-site developments. As to order turnaround. Commenters stated implement a more objective window treatments, commenters stated that measuring improvement over time management review tool, the interim that the standard was overly intrusive in the work order component could be rule provides that the management and that deductions for a single difficult because it is a new standard review will be used as a diagnostic and damaged window treatment were unfair. and PHAs will not have data, and it is feedback tool and not scored.

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Comment: One commenter stated that Removal of the Resident Satisfaction be revised to reflect more than just the the standard for corrected EHS Survey obligation and expenditure rates under deficiencies should be included in the Comment: The vast majority of the Capital Fund program. management review and scored; one commenters supported HUD’s removal HUD Response: HUD agrees with this commenter asked why this element is of the Resident Satisfaction Survey, comment, and this interim rule revises not scored and more subjective elements stating that it does not have statistical the Capital Fund indicator in order to such as market appeal are. validity or is otherwise inaccurate and measure the use of the Capital Fund for modernization and other capital needs. Comment: Two commenters stated unhelpful. One commenter, while not supporting the removal of the survey HUD believes that success in addressing that the adjustment for physical capital needs will be reflected in higher condition and neighborhood entirely, supported exploring alternatives, and made a number of occupancy rates, and this interim rule environment is more appropriate for the measures Capital Fund in terms of physical indicator. Several commenters suggestions, including utilizing Resident Advisory Boards (RABs) to timely obligation, as proposed, and adds stated that the point adjustment is too a new component tied to occupancy small to give relief for viable older obtain feedback, and sending to RABs and residents councils the results of the rate. properties. Other commenters stated Comment: One commenter suggested management review; having PHAs that different or tiered property ages that the threshold for meeting the explain what uses are being made of should qualify for the adjustment, and timeliness of obligation and expenditure resident participation funding provided that the use of census tracts does not rates be revised. necessarily reflect the neighborhood. by HUD; having HUD hold meetings HUD Response: The threshold for the with residents and staff; and allowing HUD Response: Correction and obligation subindicator has not changed. for a public comment period at PHA The interim rule reflects the timeline for abatement of EHS deficiencies is scored board meetings. Also, HUD could make under the Physical Condition Indicator. obligation of funds that is stated in the the current survey available in PHA 1937 Act. However, expenditure of As noted above, HUD has decided not common areas, develop complaint to score the management review at this Capital Funds is not necessarily a good forms, and create an ombudsman measure of how well the funds are being time but to use it as a diagnostic and position to assist residents and resident feedback tool. used for capital expenditures, and this councils. One commenter stated that it interim rule revises the indicator to Comment: One commenter stated that would be more realistic for an onsite consider occupancy as well. items that are not scored should be management review team to ask Comment: Several comments removed from PHAS, including lead residents the survey questions directly. identified technical errors creating paint abatement, occupancy review, Response: HUD’s experience is that apparent inconsistencies regarding management review findings, other the Resident Satisfaction Survey does project versus whole PHA scoring or the prior review findings, budget not have a sufficient completion rate need for clarifications regarding the management, EHS correction, and overall to be useful. HUD agrees that scoring of the Capital Fund program. insurance. resident input into the assessment HUD Response: Both the interim rule process is important. Notwithstanding and the Capital Fund scoring notice Comment: Commenters requested the removal of the resident satisfaction clarification of a number of specific have been clarified to reflect HUD’s component for the period during which intention to score Capital Fund program management review items, including: this interim rule will be in effect, HUD modernization; resident involvement; indicator activity only at the PHA level. is committed to exploring resident Comment: Several commenters reduced vacancy rate during the satisfaction, self-sufficiency, and suggested changes in the method of previous 3 years; the definition of participation measures in the final rule. determining Capital Fund program average number of days that tenant- Accordingly, HUD seeks comments from bonus funds. generated work orders remain open; the public on better methods of HUD Response: Currently, HUD adequate tracking systems; and the measuring resident satisfaction, self- awards Capital Fund program bonus scoring under various specific sufficiency, and participation. funds according to a PHA’s PHAS Management Assessment Subsystem Capital Fund Program Indicator scores. HUD does not see a reason to (MASS) components. Some commenters modify this procedure. noted that compliance with the resident Comment: One commenter indicated involvement requirement could differ that the Capital Fund program indicator Substantial Default depending on when the review is was unnecessary. Comment: One commenter suggested conducted. HUD Response: This indicator is that the PHAS regulations could be Comment: Several commenters stated statutory and imposes no reporting simplified by allowing HUD to declare that the rule, specifically the burden on PHAs because the a substantial default on its own Management Operations scoring notice, information is already captured in prerogative without regard to regulatory eLOCCS and the PIC. should be revised to allow force account criteria. Comment: One commenter requested labor. HUD Response: Sections 6(j)(3) and clarification as to how Capital Fund (4) of the 1937 Act specifically address HUD Response: As noted above, HUD Financing Program (CFFP) debt service the events or conditions that constitute has withdrawn the management review payments would affect the Capital Fund substantial default by a PHA. Part 907 as a source of PHAS scoring. All of the program indicator. (24 CFR part 907) codifies those issues mentioned in these comments are HUD Response: The Capital Fund statutory requirements. no longer proposed for PHAS scoring. program indicator measures obligations However, HUD has taken the of Capital Fund program grants. CFFP PHAS Scoring and Audit Reviews commentary regarding the utility of the amounts are treated as ‘‘obligated’’ upon Comment: One commenter states that management review itself into approval and closing of the financing. it is unclear what the ‘‘appropriate consideration. The current MASS Comment: One commenter suggested sanctions’’ are under § 902.62(a); and for protocol is removed by the interim rule. that the Capital Fund program indicator large housing authorities with large

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numbers of AMPs because collecting the upward scoring adjustments and do rule are the same procedures that have data is a large burden. more to incentivize high scores. been in effect since the issuance of the HUD Response: The interim rule in HUD Response: HUD has incentivized PHAS regulations currently codified. § 902.62(a) clearly states the appropriate PASS physical inspection scores (see The interim rule has not changed the sanction is one (1) PHAS point for each above). The higher the project’s PASS PHAS regulations as requested by the 15 days the data submission is score, the less frequently HUD inspects commenters. delinquent. Large housing authorities the property. As with the prior PHAS have many years of experience in rule, high performers are eligible for the PHAs With Deficiencies aggregating data from their sites and at Capital Fund bonus. Comment: Several commenters least 2 years of experience so far with Comment: Several commenters suggested that corrective action plans be collecting project level data under asset objected to the removal of the board of restricted to substandard performers and management. Accordingly, the interim review and recommended its that HUD should give a PHA the option rule has not changed the PHAS reinstatement. not to deal with substandard housing. regulations as requested by the HUD Response: HUD finds that the HUD Response: The operation of commenter. mechanisms for technical reviews, decent, safe, and sanitary housing is the In addition, late points and late database adjustments and appeals core of HUD’s monitoring obligations presumptive failure will only be applied provide sufficient recourse to a PHA, under its grant contracts with PHAs. To to the financial condition indicator. where there are issues of record or fact suggest otherwise, especially that a PHA This limitation is because the in dispute, that there is no longer a need not address substandard housing, is management operations information is for a board of review. The interim rule unacceptable to HUD. PHAs have a derived from the financial condition has not changed the PHAS regulations statutory obligation to provide decent, submission, and applying penalties for as requested by the commenters. safe, and sanitary housing and will be lateness under both indicators would Comment: A commenter suggested held responsible for failure to meet this penalize PHAs twice for the same that the ‘‘substandard’’ performance obligation. The changes to the PHAS action. designation should be appealable and regulations proposed by the August 21, Comment: One commenter stated that that a time limit should be placed on 2008, proposed rule and adopted by this § 902.64(a)(2) allows HUD to change a HUD’s review of appeals. interim rule are designed to better PHAS score based on the audit report, HUD Response: A PHA can appeal its evaluate whether this core other actions such as investigations by PHAS scores, as well as a designation as responsibility is met by PHAS. Finally, HUD’s Office of Fair Housing and Equal substandard. HUD’s position is that a there are and will continue to be Opportunity (FHEO) or Office of time limit for the review of appeals may circumstances where deficiencies are Inspector General (OIG), or reinspection be counterproductive to ensuring noted, but are not sufficient to declare by HUD. This commenter stated that adequate review of an appeal since the a PHA troubled or substandard. In such arbitrarily changing a PHAS score is not underlying circumstances involved in cases, the development of a corrective appropriate and the regulations should the matter of the appeal can vary action plan may be in order. The interim not allow HUD to take this action. greatly. The interim rule did not change rule has not changed the PHAS Another commenter stated that the the PHAS regulations as requested by regulations as requested by the ‘‘significant difference’’ between the the commenters. commenters. audited and unaudited results and the Comment: One commenter suggested amount of downward adjustment need that § 902.62(a)(3) should be revised to Troubled Performers to be defined. reflect that a PHA may have received a Comment: One commenter stated that HUD Response: Because the audit waiver from HUD under § 902.60(c), and HUD should increase the time for a PHA report is the PHA’s submission to HUD, the PHA’s due date for submission of its to review and accept a memorandum of the fact that it may yield different audited financial information may, agreement (MOA) and that the scoring results than the unaudited FDS therefore, be other than 9 months after substantial improvement measure under is a proper outcome. HUD notes that the PHA’s fiscal year-end. § 902.75(g) be tied to the MOA. This adjustments due to the audited HUD Response: HUD will not commenter stated that the current statement may be adjusted either penalize a PHA that has received a timeline does not provide enough time upward or downward, and a waiver under § 902.60(c), for submitting for meaningful resident participation. management operations score can its audited financial statement in HUD Response: This interim rule at change as a result of the audited accordance with the provisions of the § 902.75(c) provides that HUD may submission since the management waiver. HUD can waive the submission extend both PHA review and acceptance operations information is derived from of an audited statement to HUD, but it time upon PHA request. Since the MOA the financial condition submission. cannot waive the PHA’s submission of is designed to remedy a troubled PHA, HUD reserves the right to alter PHAS an audited statement to the Federal its substantial improvement measures scores when instances of bona fide non- Audit Clearinghouse pursuant to OMB are tied properly to the PHA’s PHAS compliance, for items otherwise subject Circular A–133. The interim rule has evaluation. In addition, the criteria for to routine PHAS scoring mechanisms, not changed the PHAS regulations as substantial improvement are statutory. are revealed by the OIG or FHEO. requested by the commenters. Further, ensuring meaningful resident In addition, if a PHA does not submit Comment: Several commenters participation is wholly within the its unaudited or audited information, it objected to: (1) The limited purview and control of the PHA. As will receive a zero for management circumstances under which a PHA can noted above, the PHA may request operations. request a technical review of the additional time to effect an MOA. HUD The significant difference between the physical inspection; and (2) limiting has not changed the interim rule to unaudited and audited financial appeals only to those that would reflect these comments. submissions is defined in the Financial materially affect the physical condition Condition Scoring Notice. and PHAS scores. V. Solicitation of Additional Comment Comment: Some commenters stated HUD Response: The technical review HUD generally publishes rules for that the rule should allow for more and appeals procedures in the interim advance public comment in accordance

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with its rules on rulemaking at 24 CFR Unfunded Mandates Reform Act there were no commenters that part 10. However, under 24 CFR 10.1, Title II of the Unfunded Mandates suggested that the proposed rule HUD may omit prior public notice and Reform Act of 1995 (UMRA) establishes violated regulatory flexibility principles. comment if it is ‘‘impracticable, requirements for Federal agencies to Therefore, the undersigned certifies that unnecessary, or contrary to the public assess the effects of their regulatory this rule will not have a significant interest.’’ Since HUD recently published actions on state, local, and tribal impact on a substantial number of small a proposed rule on this subject on governments and the private sector. entities. which it received extensive public This rule will not impose any Federal Executive Order 13132, Federalism comment, advance public comment on mandates on any state, local, or tribal Executive Order 13132 (entitled this interim rule is unnecessary. While governments or the private sector within ‘‘Federalism’’) prohibits an agency from HUD recognizes the concerns expressed the meaning of UMRA. by many commenters about publishing any rule that has federalism incorporating the management review Environmental Review implications if the rule either imposes into the PHAS scoring until such A Finding of No Significant Impact substantial direct compliance costs on matters as subjectivity, capacity, and with respect to the environment was State and local governments and is not training can be more fully developed, it made at the proposed rule stage in required by statute, or the rule preempts is necessary to provide an interim accordance with HUD regulations in State law, unless the agency meets the mechanism for scoring PHAs. Therefore, 24 CFR part 50 that implement section consultation and funding requirements HUD is issuing this interim rule. 102(2)(C) of the National Environmental of section 6 of the Executive Order. This Because of the importance and Policy Act of 1969 (42 U.S.C. 4332). interim rule does not have federalism complexity of the issues involved, HUD That Finding remains applicable to this implications and does not impose is also providing additional opportunity interim rule and is available for public substantial direct compliance costs on for public comment while also inspection during regular business State and local governments nor establishing an interim mechanism for hours in the Regulations Division, preempt State law within the meaning scoring. The preamble to this interim Office of General Counsel, Department of the Executive Order. rule, where appropriate, states several of Housing and Urban Development, Catalog of Federal Domestic Assistance specific issues upon which HUD seeks 451 7th Street, SW., Room 10276, The Catalog of Federal Domestic comment. Washington, DC 20410–0500. Due to Assistance number for the Public security measures at the HUD VI. Findings and Certifications Housing program is 14.850. Headquarters building, please schedule Paperwork Reduction Act an appointment to review the Finding List of Subjects by calling the Regulations Division at 24 CFR Part 901 The information collection 202–402–3055 (this is not a toll-free requirements have been submitted to number). Administrative practice and the Office of Management and Budget procedures, public housing, reporting (OMB) under the Paperwork Reduction Impact on Small Entities and recordkeeping requirements. Act of 1995 (44 U.S.C. 3501–3520), and The Regulatory Flexibility Act (RFA) 24 CFR Part 902 have been approved under OMB Control (5 U.S.C. 601 et seq.) generally requires Numbers 2577–0237, 2535–0106, 2502– an agency to conduct a regulatory Administrative practice and 0369, and 2535–0107. In accordance flexibility analysis of any rule subject to procedures, public housing, reporting with the Paperwork Reduction Act, an notice and comment rulemaking and recordkeeping requirements. agency may not conduct or sponsor, and requirements, unless the agency certifies 24 CFR Part 907 a person is not required to respond to, that the rule will not have a significant a collection of information, unless the economic impact on a substantial Administrative practice and collection displays a currently valid number of small entities. This rule procedures, public housing, reporting OMB control number. revises HUD’s existing PHAS and recordkeeping requirements. Accordingly, HUD amends 24 CFR Regulatory Planning and Review regulations for the assessment of public housing at 24 CFR part 902, to revise the Chapter IX, as follows: OMB reviewed this rule under PHAS regulations to elaborate upon Executive Order 12866, Regulatory certain procedures, to conform the PART 901—[REMOVED AND Planning and Review. This rule was PHAS regulations to current public RESERVED] determined to be a ‘‘significant housing operations, and to conform to ■ 1. Under the authority of 42 U.S.C. regulatory action’’ as defined in section certain statutory changes. These 1436d(j), remove and reserve 24 CFR 3(f) of the Order (although not an revisions impose no significant part 901. economically significant regulatory economic impact on a substantial ■ 2. Revise 24 CFR part 902 to read as action under the Order). The docket file number of small entities. PHAs in follows: is available for public inspection in the general have been assessed under PHAS Regulations Division, Office of General for several years, and this rule imposes PART 902—PUBLIC HOUSING Counsel, Department of Housing and no additional burdens; rather, it ASSESSMENT SYSTEM Urban Development, 451 Seventh Street, removes the onsite management review, SW., Room 10276, Washington, DC further lessening the compliance Subpart A—General Provisions 20410–0500. Due to security measures burdens on all PHAs. Further, small at the HUD Headquarters building, an PHAs (PHAs with under 250 units) are Sec. 902.1 Purpose, scope, and general matters. advance appointment to review the assessed on a less frequent schedule 902.3 Definitions. public comments must be scheduled by than larger ones. While some 902.5 Applicability. calling the Regulations Division at 202– commenters on the August 21, 2008, 902.9 PHAS scoring. 402–3055 (this is not a toll-free proposed rule argued for even further 902.11 PHAS performance designation. number). lessening of the burdens on small PHAs, 902.13 Frequency of PHAS assessments.

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Subpart B—Physical Condition Indicator housing operations of projects, on a management agreement with a PHA, or 902.20 Physical condition assessment. program-wide basis and individual that is otherwise duly appointed or 902.21 Physical condition standards for project basis, and providing rewards for contracted (for example, by court order public housing—decent, safe, and high performers and remedial or agency action), to manage all or part sanitary housing in good repair (DSS/ requirements for poor performers. of a PHA’s operations. GR). (b) Scope. PHAS is a strategic measure Assessed fiscal year is the PHA fiscal 902.22 Physical inspection of PHA projects. of the essential housing operations of year that has been/is being assessed 902.24 Database adjustment. projects and PHAs. PHAS does not under PHAS. 902.25 Physical condition scoring and Assistant Secretary means the thresholds. evaluate the compliance of a project or 902.26 Physical Inspection Report. PHA with every HUD-wide or program- Assistant Secretary for Public and specific requirement or objective. Indian Housing. Subpart C—Financial Condition Although not specifically evaluated Capital Fund-troubled refers to a PHA Indicator through PHAS, PHAs are responsible for that does not meet the minimum complying with nondiscrimination and passing score of 5 points or 50 percent 902.30 Financial condition assessment. equal opportunity requirements, under the Capital Fund indicator. 902.33 Financial reporting requirements. including but not limited to those Corrective Action Plan means a plan, 902.35 Financial condition scoring and as provided in § 902.73(a), that is thresholds. specified in 24 CFR 5.105, for affirmatively furthering fair housing, developed by a PHA that specifies the Subpart D—Management Operations requirements under section 504 of the actions to be taken, including Indicator Rehabilitation Act of 1973 (29 U.S.C. timetables, that shall be required to 794), and requirements of other federal correct deficiencies identified under any 902.40 Management operations assessment. programs under which the PHA is of the PHAS indicators and 902.43 Management operations subindicators, and identified as a result performance standards. receiving assistance. A PHA’s adherence to these requirements will be monitored of a PHAS assessment, when a 902.44 Adjustment for physical condition memorandum of agreement (MOA) is and neighborhood environment. in accordance with the applicable 902.45 Management operations scoring and program regulations and the PHA’s not required. thresholds. Annual Contributions Contract (ACC). Criticality means one of five levels (c) PHAS indicators. HUD will assess that reflect the relative importance of Subpart E—Capital Fund Program and score the performance of projects the deficiencies for an inspectable item. Indicator and PHAs based on the indicators, (1) Based on the importance of the deficiency, reflected in its criticality 902.50 Capital Fund program assessment. which are more fully addressed in § 902.9: Physical condition, financial value, points are deducted from the 902.53 Capital Fund program scoring and score for an inspectable area. thresholds. condition, management operations, and the Capital Fund program. Criticality Level Subpart F—PHAS Scoring (d) Assessment tools. HUD will make use of uniform and objective criteria for Critical ...... 5 902.60 Data collection. the physical inspection of projects and Very Important ...... 4 902.62 Failure to submit data. PHAs and the financial assessment of Important ...... 3 902.64 PHAS scoring and audit reviews. Contributes ...... 2 902.66 Withholding, denying, and projects and PHAs, and will use data Slight Contribution ...... 1 rescinding designation. from appropriate agency data systems to 902.68 Technical review of results of PHAS assess management operations. For the physical condition indicator. Capital Fund program indicator, HUD (2) The Item Weights and Criticality 902.69 PHA right of petition and appeal. will use information provided in the Levels document lists all deficiencies with their designated levels, which vary Subpart G—PHAS Incentives and Remedies electronic Line of Credit Control System (eLOCCS), the Public Housing from 1 to 5, with 5 as the most critical, 902.71 Incentives for high performers. Information Center (PIC), or their and the point values assigned to them. 902.73 PHAs with deficiencies. Days mean calendar days, unless 902.75 Troubled performers. successor systems. On the basis of this data, HUD will assess and score the otherwise specified. 902.79 Verification and records. Decent, safe, sanitary housing and in results, advise PHAs of their scores, and 902.81 Resident petitions for remedial good repair (DSS/GR) is HUD’s standard identify low-scoring and poor- action. for acceptable basic housing conditions 902.83 Sanctions for troubled performer performing projects and PHAs so that and the level to which a PHA is PHAs. these projects and PHAs will receive the required to maintain its public housing. Authority: 42 U.S.C. 1437d(j), 42 U.S.C. appropriate attention and assistance. Deficiency means any finding or (e) Small PHAs. A PHA with fewer 3535(d). determination that requires corrective than 250 units that does not convert to action, or any score below 60 percent of Subpart A—General Provisions asset management will be considered as the available points for the physical one project by HUD. § 902.1 Purpose, scope, and general (f) HUD’s scoring procedures will be condition, financial condition, or matters. published from time to time in the management operations indicators, and (a) Purpose. The purpose of the Public Federal Register for public comment. any score below 50 percent for the Housing Assessment System (PHAS) is Capital Fund indicator. In the context of to improve the delivery of services in § 902.3 Definitions. physical condition and physical public housing and enhance trust in the As used in this part: inspection in subpart B of this part, public housing system among public Act means the U.S. Housing Act of ‘‘deficiency’’ means a specific problem, housing agencies (PHAs), public 1937 (42 U.S.C. 1437 et seq.) as described in the Dictionary of housing residents, and the general Alternative management entity (AME) Deficiency Definitions, such as a hole in public, by providing a management tool is a receiver, private contractor, private a wall or a damaged refrigerator in the for effectively and fairly measuring the manager, or any other entity that is kitchen that can be recorded for performance of a PHA in essential under contract with a PHA, under a inspectable items.

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Dictionary of Deficiency Definitions Criticality Levels document shows the assumed by an RMC or AME (including means the Dictionary of Deficiency severity levels for each deficiency. a court-ordered or administrative Definitions document that is utilized in Based on the severity of each deficiency, receivership agreement, if applicable). the PHAS Physical Condition Scoring the score is reduced. Points deducted (ii) A PHA’s PHAS score will not be procedure, and which contains specific are calculated as the product of the item based on projects managed by a DF– definitions of each severity level for weight and the values for criticality and RMC. deficiencies under this subpart. severity. For specific definitions of each (3) This part does not apply to Direct Funded RMC (DF–RMC) means severity level, see the Dictionary of Moving-to-Work (MTW) agencies that a Resident Management Corporation to Deficiency Definitions. are specifically exempted in their grant which HUD directly provides operating Statistically valid sample refers to a agreement. and capital assistance under the scientific sampling performed in a (b) Implementation of PHAS. The provisions of 24 CFR 964.225(h). rigorous, random manner. regulations in this part are applicable to Inspectable areas (or area) mean any Subarea means an inspectable area for PHAs beginning with the first fiscal year of the five major components of public one building. For example, if a project end date after the effective date of this housing that are inspected, which are: has more than one building, each rule, and thereafter. Site, building exteriors, building inspectable area for each building in the systems, dwelling units, and common project is treated as a subarea. § 902.9 PHAS scoring. areas. Unit-weighted average means the (a) Indicators and subindicators. Each Inspectable item means the individual average of the PHA’s individual PHA will receive an overall PHAS score, parts, such as walls, kitchens, indicator scores, weighted by the rounded to the nearest whole number, bathrooms, and other things, to be number of units in each project, divided based on the four indicators: Physical inspected in an inspectable area. The by the total number of units in all of the condition, financial condition, number of inspectable items varies for projects of the PHA. In order to compute management operations, and the Capital each area. Weights are assigned to each a unit-weighted average, an individual Fund program. Each of these indicators item as shown in the Item Weights and project score for a particular indicator is contains subindicators, and the scores Criticality Levels document. multiplied by the number of units in for the subindicators are used to Item Weights and Criticality Levels each project to determine a ‘‘weighted determine a single score for each of document means the Item Weights and value.’’ For example, for a PHA with two these PHAS indicators. Individual Criticality Levels document that is projects, one with 200 units and a score project scores are used to determine a utilized in the Physical Condition of 90, and the other with 100 units and single score for the physical condition, scoring procedure, and which contains a score of 60, the unit-weighted average financial condition, and management a listing of the inspectable items, item score for the indicator would be (200 × operations indicators. The Capital Fund weights, observable deficiencies, 90 + 100 × 60)/300 = 80. program indicator score is entity-wide. criticality levels and values, and (b) Overall PHAS score and severity levels and values that apply to § 902.5 Applicability. indicators. The overall PHAS score is this subpart. (a) PHAs, RMCs, AMEs. This part derived from a weighted average of Memorandum of Agreement (MOA) is applies to PHAs, Resident Management score values for the four indicators, as defined in § 902.75(b). Corporations (RMCs), and AMEs. This follows: Normalized weights mean weights part is also applicable to RMCs that (1) The physical condition indicator is adjusted to reflect the inspectable items receive direct funding from HUD in weighted 40 percent (40 points) of the or areas that are present to be inspected. accordance with section 20 of the 1937 overall PHAS score. The score for this Resident Management Corporation Act (DF–RMCs). indicator is obtained as indicated in (RMC) is defined in 24 CFR 964.7. (1) Scoring of RMCs and AMEs. (i) subpart B of this part. Score for a project under the physical RMCs and DF–RMCs will be assessed (2) The financial condition indicator condition inspection means a number and issued their own numeric scores is weighted 25 percent (25 points) of the on a scale of 0 to 100 that reflects the under PHAS based on the public overall PHAS score. The score for this physical condition of a project, housing or portions of public housing indicator is obtained as indicated in inspectable area, or subarea. To record that they manage and the subpart C of this part. a health or safety deficiency, a specific responsibilities they assume that can be (3) The management operations designation (such as a letter—a, b, or c) scored under PHAS. References in this indicator is weighted 25 percent (25 is added to the project score that part to PHAs include RMCs, unless points) of the overall PHAS score. The highlights that a health or safety stated otherwise. References in this part score for this indicator is obtained as deficiency (or deficiencies) exists. If to RMCs include DF–RMCs, unless indicated in subpart D of this part. smoke detectors are noted as inoperable stated otherwise. (4) The Capital Fund program or missing, another designation (such as (ii) AMEs are not issued PHAS scores. indicator is weighted 10 percent (10 an asterisk (*)) is added to the project The performance of the AME points) of the overall PHAS score for all score. Although inoperable or missing contributes to the PHAS score of the Capital Fund program grants for which smoke detectors do not reduce the score, project(s)/PHA(s) for which they fund balances remain during the they are fire safety hazards and are assumed management responsibilities. assessed fiscal year. The score for this included in the Notification of Exigent (2) ACC. The ACC makes a PHA indicator is obtained as indicated in and Fire Safety Hazards Observed legally responsible for all public subpart E of this part. Deficiency list that the inspector gives housing operations, except where DF– the PHA’s project representative. RMC assumes management operations. § 902.11 PHAS performance designation. Severity under the physical condition (i) Because the PHA and not the RMC All PHAs that receive a PHAS inspection means one of three levels, or AME is ultimately responsible to assessment shall receive a performance level 1 (minor), level 2 (major), and HUD under the ACC, the PHAS score of designation. The performance level 3 (severe), that reflect the extent of a PHA will be based on all of the designation is based on the overall the damage or problem associated with projects covered by the ACC, including PHAS score and the four indicator each deficiency. The Item Weights and those with management operations scores, as set forth below.

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(a) High performer. (1) A PHA that between assessments by direct notice to shall comply with the requirements for achieves a score of at least 60 percent the PHA and relevant resident submission of annual unaudited and of the points available under the organization or resident management audited financial statements in financial condition, physical condition, entity, and any other general notice that accordance with subpart C of this part and management operations indicators HUD deems appropriate. and 24 CFR 5.801. and at least 50 percent of the points (a) Small PHAs. HUD will assess and available under the Capital Fund score the performance of a PHA with Subpart B—Physical Condition indicator, and achieves an overall PHAS fewer than 250 public housing units, as Indicator follows: score of 90 percent or greater of the total § 902.20 Physical condition assessment. available points under PHAS shall be (1) A small PHA that is a high designated a high performer. A PHA performer may receive a PHAS (a) Objective. The objective of the shall not be designated a high performer assessment every 3 years; physical condition indicator is to if it scores below the threshold (2) A small PHA that is a standard or determine whether a PHA is meeting the established for any indicator. substandard performer may receive a standard of decent, safe, sanitary (2) High performers will be afforded PHAS assessment every other year; and housing in good repair (DSS/GR), as this incentives that include relief from (3) All other small PHAs may receive standard is defined in 24 CFR 5.703. a PHAS assessment every year, reporting and other requirements, as (b) Method of assessment. The including a PHA that is designated as described in § 902.71. physical condition assessment is based troubled or Capital Fund-troubled in (b) Standard performer. (1) A PHA on an independent physical inspection accordance with § 902.75. that is not a high performer shall be of a PHA’s projects provided by HUD (b) Frequency of scoring for PHAs designated a standard performer if the and performed by contract inspectors, with 250 units or more. PHA achieves an overall PHAS score of and conducted using HUD’s Uniform at least 60 percent, and at least 60 (1) All PHAs, other than stated in paragraph (a) of this section, may be Physical Condition Standards (UPCS) percent of the available points for the under 24 CFR part 5, subpart G. physical condition, financial condition, assessed on an annual basis. and management operations indicators, (2) The physical condition score for (c) Method of transmission. After the and at least 50 percent of the available each project will determine the inspection is completed, the inspector points for the Capital Fund indicator. frequency of inspections of each project. transmits the results to HUD, where the (2) At HUD’s discretion, a standard For projects with a physical condition results are verified for accuracy and performer may be required by the field score of 90 points or higher, physical then scored in accordance with the office to submit and operate under a inspections will be conducted every 3 procedures in this subpart B. Corrective Action Plan. years at the project. For projects with a (d) PHA physical inspection (c) Substandard performer. A PHA physical condition score of less than 90 requirements. The physical inspections shall be designated a substandard points but at least 80 points, physical conducted under this part do not relieve performer if the PHA achieves a total inspection will be conducted every 2 the PHA of the responsibility to inspect PHAS score of at least 60 percent and years at the project. The physical public housing units, as provided in achieves a score of less than 60 percent condition score of 80 points or higher section 6(f)(3) of the Act (42 U.S.C. under one or more of the physical will be carried over to the next 1437d(f)(3)). assessment period and averaged with condition, financial condition, or (e) Compliance with state and local the other project physical condition management operations indicators. The codes. The physical condition standards score(s) for the next assessment year for PHA shall be designated as substandard in this part do not supersede or preempt an overall PHAS physical condition physical, substandard financial, or state and local building and indicator score. For projects whose substandard management, respectively. maintenance codes with which the physical condition score for a project is The HUD office with jurisdiction over PHA’s public housing must comply. less than 80 points, physical inspections the PHA shall require a Corrective PHAs must continue to adhere to these will be conducted annually at the Action Plan if the deficiencies have not codes. already been addressed in a current project. (f) HUD access to PHA projects. All Corrective Action Plan. (3) If a PHA is designated as a (d) Troubled performer. (1) A PHA troubled performer, all projects will PHAs are required by the ACC to that achieves an overall PHAS score of receive a physical condition inspection provide HUD or its representative with less than 60 percent shall be designated regardless of the individual project full and free access to all facilities in its as a troubled performer. physical condition score. projects. All PHAs are required to (2) In accordance with section (4) In the baseline year, every PHA provide HUD or its representative with 6(j)(2)(A)(i) of the Act (42 U.S.C. will receive an overall PHAS score and access to its projects and to all units and 1437d(j)(2)(A)(i)), a PHA that receives in all four of the PHAS indicators: appurtenances in order to permit less than 50 percent under the Capital Physical condition; financial condition; physical inspections, monitoring Fund program indicator under subpart E management operations; and Capital reviews, and quality assurance reviews of this part will be designated as a Fund program. This will allow a under this part. Access to the units shall troubled performer and subject to the baseline for the physical condition be provided whether or not the resident sanctions provided in section 6(j)(4) of inspections and the 3–2–1 inspection is home or has installed additional locks the Act (42 U.S.C. 1437(d)(j)(4)). schedule, as well as a baseline year for for which the PHA did not obtain keys. the small deregulated PHAs. In the event that the PHA fails to § 902.13 Frequency of PHAS assessments. (c) Financial submissions. HUD shall provide access as required by HUD or its The frequency of a PHA’s PHAS not issue a PHAS score for the representative, the PHA shall be given a assessments is determined by the size of unaudited and audited financial physical condition score of zero for the the PHA’s Low-Rent program and its information in the years that a PHA is project or projects involved. This score PHAS designation. HUD may, due to not being assessed under PHAS. of zero shall be used to calculate the unforeseen circumstances or other cause Although HUD shall not issue a PHAS physical condition indicator score and as determined by HUD, extend the time score under such circumstances, a PHA the overall PHAS score.

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§ 902.21 Physical condition standards for (2) A small PHA that is a standard or the project, excluding vacant units not public housing—decent, safe, and sanitary substandard performer will receive a under lease at the time of the physical housing in good repair (DSS/GR). PHAS assessment every other year; and inspection, as provided in paragraph (a) General. Public housing must be (3) All other small PHAs will receive (d)(2) of this section. maintained in a manner that meets the a PHAS assessment every year, (f) Exigent health and safety (EHS) physical condition standards set forth in including a PHA that is designated as deficiencies and health and safety this part in order to be considered DSS/ troubled or Capital Fund-troubled in (H&S) deficiencies. (1) EHS deficiencies. GR (standards that constitute acceptable accordance with § 902.75. To ensure prompt correction of EHS basic housing conditions). These (c) In the baseline year, every PHA deficiencies, before leaving the site the standards address the major physical will receive an overall PHAS score and inspector gives the project areas of public housing: Site, building in all four of the PHAS indicators: representative a Notification of Exigent exterior, building systems, dwelling Physical condition; financial condition; and Fire Safety Hazards Observed form units, and common areas (see paragraph management operations; and Capital that calls for immediate attention or (b) of this section). These standards also Fund program. This will allow a remedy. The project representative identify health and safety baseline score to be established for the acknowledges receipt of the deficiency considerations (see paragraph (c) of this physical condition inspections and the report by signature. The project or PHA section). These standards address 3–2–1 inspection schedule, as well as a shall correct, remedy, or act to abate all acceptable basic housing conditions, not baseline year for the small deregulated EHS deficiencies cited in the deficiency the adornment, de´cor, or other cosmetic PHAs. report within 24 contiguous hours of the appearance of the housing. (d) Physical inspection under the project representative’s receipt of the (b) Major inspectable areas. (1) Site. PHAS physical condition indicator. (1) Notification of Exigent and Fire Safety The site includes the components and To achieve the objective of paragraph (a) Hazards Observed form. In addition, the must meet the requirements of 24 CFR of this section, HUD will provide for an project or PHA must certify to HUD 5.703(a). independent physical inspection of a within 3 business days of the project PHA’s project(s) that includes, at a (2) Building exterior. The building representative’s receipt of the minimum, a statistically valid sample of exterior includes the components and Notification of Exigent and Fire Safety the units in the PHA’s projects, to must meet the standards stated in 24 Hazards Observed form that all EHS determine the extent of compliance with CFR 5.703(b). deficiencies were corrected, remedied, the DSS/GR standard. or acted upon to abate within 24 (3) Building systems. The building’s (2) Only occupied units will be systems include components such as continuous hours. inspected as dwelling units (except (2) H&S deficiencies. The project or domestic water, electrical system, units approved by HUD for nondwelling the PHA, or both, as appropriate, is elevators, emergency power, fire purposes, e.g., daycare or meeting required to expeditiously correct, protection, heating/ventilation/air rooms, which are inspected as common remedy, or act to abate all H&S conditioning (HVAC), and sanitary areas). Vacant units that are not under deficiencies after receipt of the Physical system. Each building’s systems must lease at the time of the physical Inspection Report. meet the standards of 24 CFR 5.703(c). inspection will not be inspected. The (g) Compliance with civil rights/ (4) Dwelling units. Each dwelling unit categories of vacant units not under nondiscrimination requirements. within a building must meet the lease that are exempted from physical Elements related to accessibility will be standards of 24 CFR 5.703(d). inspection are as follows: reviewed during the physical inspection (5) Common areas. Each common area (i) Units undergoing vacant unit to determine possible indications of must meet the standards of 24 CFR turnaround—vacant units that are in the noncompliance with the Fair Housing 5.703(e). routine process of turnover; i.e., the Act (42 U.S.C. 3601–3619) and section (c) Health and safety concerns. All period between which one resident has 504 of the Rehabilitation Act of 1973 (29 areas and components of the housing vacated a unit and a new lease takes U.S.C. 794). A PHA will not be scored must be free of health and safety effect; on those elements. Any indication of hazards, as provided in 24 CFR 5.703(f). (ii) Units undergoing rehabilitation— possible noncompliance will be referred vacant units that have substantial to HUD’s Office of Fair Housing and § 902.22 Physical inspection of PHA rehabilitation needs already identified, projects. Equal Opportunity. and there is an approved (a) The inspection, generally. The implementation plan to address the § 902.24 Database adjustment. PHA’s score for the physical condition identified rehabilitation needs and the (a) Adjustments for factors not indicator is based on an independent plan is fully funded; reflected or inappropriately reflected in physical inspection of a PHA’s project(s) (iii) Offline units—vacant units that physical condition score. Under provided by HUD and using HUD’s have repair requirements such that the circumstances described in this section, Uniform Physical Condition Standard units cannot be occupied in a normal HUD may determine it is appropriate to (UPCS) inspection protocols to ensure period of time (considered to be review the results of a project’s physical projects meet DSS/GR standards that between 5 and 7 days) and which are inspection that are unusual or incorrect constitute acceptable basic housing not included under an approved due to facts and circumstances affecting conditions. Mixed-finance projects will rehabilitation plan. the PHA’s project that are not reflected be subject to the physical condition (e) Observed deficiencies. During the in the inspection or that are reflected inspections. physical inspection of a project, an inappropriately in the inspection. (b) Pursuant to § 902.13(a), PHAs with inspector looks for deficiencies for each (1) The circumstances described in less than 250 public housing units will inspectable item within the inspectable this section are not the circumstances receive a PHAS assessment, based on areas, such as holes (deficiencies) in the that may be addressed by the technical their PHAS designation, as follows: walls (item) of a dwelling unit (area). review process described in § 902.68. (1) A small PHA that is a high The dwelling units inspected in a The circumstances addressed in this performer will receive a PHAS project are a randomly selected, paragraph (a)(1) of this section may assessment every 3 years; statistically valid sample of the units in include inconsistencies between local

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code requirements and the HUD issuance of the physical condition score well as for the overall condition of a physical inspection protocol; conditions to the PHA. If the PHA is requesting a PHA’s public housing portfolio. that are permitted by local variance or reinspection, the request must be (b) Overall PHA physical condition license or which are preexisting accompanied by a certification that all indicator score. The overall physical physical features that do not conform to, deficiencies identified in the original condition indicator score is a unit- or are inconsistent with, HUD’s physical report have been corrected. Based on the weighted average of project scores. The condition protocol; or the project or recommendation of the applicable HUD sum of the unit-weighted values is PHA having been scored for elements office following its review of the divided by the total number of units in (e.g., roads, sidewalks, mail boxes, project’s or PHA’s evidence or the PHA’s portfolio to derive the overall resident-owned appliances, etc.) that it documentation, HUD may determine physical condition indicator score. does not own and is not responsible for that a reinspection and rescoring of the (c) Thresholds. (1) The project or maintaining. To qualify for an PHA’s project(s) is necessary. projects’ 100-point physical condition adjustment on this basis, the project or (c) Adjustments for modernization score is converted to a 40-point basis for PHA must have notified the proper work in progress. HUD may determine the overall physical condition indicator authorities regarding the deficient that occupied dwelling units or other score. The project scores on the 100- element. areas of a PHA’s project, which are point basis are multiplied by .40 in (2) An adjustment due to these subject to physical inspection under this order to derive a 40-point equivalent circumstances may be initiated by a subpart, and which are undergoing score to compute the overall physical project or PHA’s notification to the modernization work, require an condition score and overall PHAS score. applicable HUD field office, and such adjustment to the physical condition (2) In order to receive a passing score notification shall include appropriate score. under the physical condition indicator, proof of the reasons for the unusual or (1) An occupied dwelling unit or the PHA must achieve a score of at least incorrect result. Projects and PHAs may other areas of a PHA’s project 24 points, or 60 percent. submit the request for this adjustment undergoing modernization are subject to (3) A PHA that receives fewer than 24 either prior to or after the physical physical inspection; the unit(s) and points will be categorized as a inspection has been concluded. If the other areas of the PHA’s project are not substandard physical condition agency. request is made after the conclusion of exempt from physical inspection. All the physical inspection, the request elements of the unit or of the other areas § 902.26 Physical Inspection Report. must be made within 45 days of of the PHA’s project that are subject to (a) Following the physical inspection issuance of the project’s or PHA’s inspection and are not undergoing of each project and the computation of physical condition score. Based on the modernization at the time of the the score(s) under this subpart, the PHA recommendation of the applicable HUD inspection (even if modernization is receives a Physical Inspection Report. office following its review of the project planned) will be subject to HUD’s The Physical Inspection Report allows evidence or documentation submitted physical inspection protocol without the PHA to see the points lost by by the project or PHA, HUD may adjustment. For those elements of the inspectable area, and the impact on the determine that a reinspection and/or unit or of the project that are undergoing score of the H&S and EHS deficiencies. rescoring of the project or PHA is modernization, deficiencies will be (1) If EHS items are identified in the necessary. noted in accordance with HUD’s report, the PHA shall have the (b) Adjustments for adverse physical inspection protocol, but the opportunity to correct, remedy, or act to conditions beyond the control of the project or PHA may request adjustment abate all EHS deficiencies and may PHA. Under certain circumstances, of the physical condition score as a request a reinspection. HUD may determine that certain result of modernization work in (2) The request for reinspection must deficiencies that adversely and progress. be made within 45 days of the PHA’s significantly affect the physical (2) An adjustment due to receipt of the Physical Inspection condition score of the project were modernization work in progress may be Report. The request for reinspection caused by circumstances beyond the initiated by a project’s or PHA’s must be accompanied by the PHA’s control of the PHA. The correction of notification to the applicable HUD field identification of the EHS deficiencies these conditions, however, remains the office, and the notification shall include that have been corrected, remedied, or responsibility of the PHA. supporting documentation of the acted upon to abate and by the PHA’s (1) The circumstances addressed by modernization work under way at the certification that all such deficiencies this paragraph (b)(1) may include, but time of the physical inspection. A identified in the report have been are not limited to, damage caused by project or PHA may submit the request corrected, remedied, or acted upon to third parties (such as a private entity or for this adjustment either prior to or abate. public entity undertaking work near a after the physical inspection has been (3) If HUD determines that a public housing project that results in concluded. If the request is made after reinspection is appropriate, it will damage to the project) or natural the conclusion of the physical arrange for a complete reinspection of disasters. The circumstances addressed inspection, the request must be made the project(s) in question, not just the in this paragraph (b)(1) are not those within 45 days of issuance of the deficiencies previously identified. The addressed by the technical review physical condition score. Based on the reinspection will constitute the final process in § 902.68. recommendation of the applicable HUD physical inspection for the project, and (2) To adjust a physical condition office, HUD may determine that a HUD will issue a new inspection report score based on circumstances addressed reinspection and rescoring of the PHA’s (the final inspection report). in this paragraph, the PHA must submit project(s) are necessary. (4) If any of the previously identified a request to the applicable HUD field EHS deficiencies that the PHA certified office requesting a reinspection or § 902.25 Physical condition scoring and were corrected, remedied, or acted upon rescoring of the PHA’s project(s) thresholds. to abate are found during the dependent on the severity of the (a) Scoring. Under the physical reinspection not to have been corrected, deficiency. The request must be condition indicator, a score will be remedied, or acted upon to abate, the submitted within 45 days of the calculated for individual projects, as score in the final inspection report will

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reflect a point deduction of triple the (2) Submitted electronically in the project’s ability to make payments on a value of the original deduction, up to format prescribed by HUD using the timely basis may be at risk. the maximum possible points for the Financial Data Schedule (FDS). (2) Months Expendable Net Assets unit or area, and the PHA must (b) Annual unaudited financial Ratio (MENAR). The MENAR measures reimburse HUD for the cost of the information report filing dates. The a project’s ability to operate using its net reinspection. unaudited financial information to be available, unrestricted resources (5) If a request for reinspection is not submitted to HUD in accordance with without relying on additional funding. made within 45 days after the date that paragraph (a) of this section must be This ratio compares the adjusted net the PHA receives the Physical submitted to HUD annually, no later available unrestricted resources to the Inspection Report, the Physical than 2 months after the PHA’s fiscal average monthly operating expenses. Inspection Report issued to the PHA year end, with no penalty applying until The result of this calculation shows how will be the final Physical Inspection the 16th day of the 3rd month after the many months of operating expenses can Report. PHA’s fiscal year end, in accordance be covered with currently available, (b) A Physical Inspection Report with § 902.62. unrestricted resources. includes the following items: (c) Annual audited financial (3) Debt Service Coverage Ratio (1) Normalized weights as the information compliance dates. Audited (DSCR). The DSCR is the ratio of net ‘‘possible points’’ by area; financial statements will be required no operating income available to make debt (2) The area scores, taking into later than 9 months after the PHA’s payments, to the amount of the debt account the points deducted for fiscal year end, in accordance with the payments. This subindicator is used if observed deficiencies; Single Audit Act and OMB Circular A– the PHA has taken on long-term (3) The H&S (nonlife threatening) and 133 (see 24 CFR 85.26). obligations. A DSCR of less than one EHS (life threatening) deductions for (d) Year-end audited financial would indicate that the project would each of the five inspectable areas; a information. All PHAs that meet the have difficulty generating sufficient listing of all observed smoke detector federal assistance threshold stated in the cash flow to cover both its expenses and deficiencies; and a projection of the Single Audit Act and OMB Circular A– its debt obligations. total number of H&S and EHS problems 133 must also submit year-end audited (c) Overall PHA financial condition that the inspector potentially would see financial information. indicator score. The overall financial in an inspection of all buildings and all (e) Submission of information. In condition indicator score is a unit- units; and addition to the submission of weighted average of project scores. The sum of the weighted values is then (4) The overall project score. information required by paragraph (a) of this section, a PHA shall provide one divided by the total number of units in Subpart C—Financial Condition copy of the completed audit report the PHA’s portfolio to derive the overall Indicator package and the Management Letter financial condition indicator score. issued by the Independent Auditor to (d) Thresholds. (1) The PHA’s § 902.30 Financial condition assessment. the local HUD field office having financial condition score is based on a (a) Objective. The objective of the jurisdiction over the PHA. maximum of 25 points. financial condition indicator is to (2) In order for a PHA to receive a measure the financial condition of each § 902.35 Financial condition scoring and passing score under the financial public housing project within a PHA’s thresholds. condition indicator, the PHA must public housing portfolio for the purpose (a) Scoring. (1) Under the financial achieve a score of at least 15 points, or of evaluating whether there are condition indicator, a score will be 60 percent of the available points under sufficient financial resources to support calculated for each project based on the this indicator. the provision of housing that is DSS/GR. values of financial condition (3) A PHA that receives fewer than 15 Individual project scores for financial subindicators and an overall financial points available under this indicator condition, as well as overall financial condition score, as well as audit and will be categorized as a substandard condition scores, will be issued. internal control flags. Each financial financial condition agency. (b) Financial reporting standards. A condition subindicator has several PHA’s financial condition will be levels of performance, with different Subpart D—Management Operations assessed under this indicator by point values for each level. Indicator measuring the combined performance of (2) The financial condition score for § 902.40 Management operations all public housing projects in each of projects will be based on the annual assessment. the subindicators listed in § 902.35, on financial condition information (a) Objective. The objective of the the basis of the annual financial report submitted to HUD for each project management operations indicator is to provided in accordance with § 902.33. under 24 CFR 990.280 and 990.285. The measure the PHA’s performance of (c) Exclusions. Mixed-finance projects financial condition score for PHAs will management operations through the are excluded from the financial be based on a unit-weighted average of management performance of each condition indicator. project scores. project. (b) Subindicators of the financial § 902.33 Financial reporting requirements. (b) Exclusions. Mixed-finance projects condition indicator. The subindicators are excluded from the management (a) Annual financial report. All PHAs of financial condition indicator are: operations indicator. must submit their unaudited and (1) Quick Ratio (QR). The QR audited financial data to HUD on an compares quick assets to current § 902.43 Management operations annual basis. The financial information liabilities. Quick assets are cash and performance standards. must be: assets that are easily convertible to cash (a) Management operations (1) Prepared in accordance with and do not include inventory. Current subindicators. The following Generally Accepted Accounting liabilities are those liabilities that are subindicators listed in this section will Principles (GAAP), as further defined by due within the next 12 months. A QR be used to assess the management HUD in supplementary guidance; and of less than one indicates that the operations of projects and PHAs,

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consistent with section 6(j)(1) of the Act overall management operations score for (c) Capital Fund subindicators. The (42 U.S.C. 1437d(j)(1)). Individual each project so as to reflect the difficulty subindicators pursuant to section 9(d) of project scores for management in managing the projects. In each the Act are: operations, as well as overall PHA instance where the actual management (1) Timeliness of fund obligation. This management operations scores, will be operations score is rated below the subindicator examines the period of issued. maximum score of 25 points, one point time it takes for a PHA to obligate funds (1) Occupancy. This subindicator each will be added for physical from the Capital Fund program under measures the occupancy for the project’s condition and neighborhood section 9(j)(1) of the 1937 Act (42 U.S.C. fiscal year, adjusted for allowable environment, but not to exceed the 1437g(9)(j)). vacancies. maximum number of 25 points available (2) Occupancy rate. This subindicator (2) Tenant accounts receivable. This for the management operations measures the PHA’s occupancy rate as subindicator measures the tenant indicator. of the end of the PHA’s fiscal year. accounts receivable of a project against (d) Application of adjustment. The (d) Method of assessment. The the tenant charges for the project’s fiscal adjustment for physical condition and assessment required under the Capital year. neighborhood environment will be Fund program indicator will be (3) Accounts payable. This calculated by HUD and applied to all performed through analysis of obligated subindicator measures the money that a eligible projects. amounts in HUD’s eLOCCS (or its project owes to vendors at the end of the § 902.45 Management operations scoring successor) for all Capital Fund program project’s fiscal year for products and and thresholds. grants that were open during the services purchased on credit against (a) Scoring. Under the management assessed fiscal year. This subindicator total operating expenses. measures a statutory requirement for the (b) Assessment under the operations indicator, HUD will calculate a score for each project, as well as for Capital Fund program. Other aspects of Management Operations Indicator. the Capital Fund program will be Projects will be assessed under this the overall management operations of a PHA, that reflects weights based on the monitored by HUD through other types indicator through information that is of reviews, and in this indicator through electronically submitted to HUD relative importance of the individual management subindicators. considering occupancy rates. through the FDS. (b) Overall PHA management (1) PHAs are responsible to ensure § 902.44 Adjustment for physical condition operations indicator score. The overall that their Capital Fund program and neighborhood environment. management operations indicator score information is submitted to eLOCCS by (a) General. In accordance with is a unit-weighted average of project the submission due date. (2) A PHA may not appeal its PHAS section 6(j)(1)(I)(2) of the Act (42 U.S.C. scores. The sum of the weighted values score, Capital Fund program score, or 1437d(j)(1)(I)(2)), the overall is divided by the total number of units both, based on the fact that it did not management operations score for a in the PHA’s portfolio to derive the submit its Capital Fund program project will be adjusted upward to the overall management operations information to eLOCCS and/or the PIC extent that negative conditions are indicator score. systems by the submission due date. caused by situations outside the control (c) Thresholds. (1) The PHA’s management operations score is based of the project. These situations are § 902.53 Capital Fund program scoring related to the poor physical condition of on a maximum of 25 points. and thresholds. (2) In order to receive a passing score the project or the overall depressed (a) Scoring. The Capital Fund program condition of the major census tract in under the management operations indicator, a PHA must achieve a score indicator score provides an assessment which a project is located. The intent of of a PHA’s ability to obligate Capital this adjustment is to avoid penalizing of at least 15 points or 60 percent. (3) A PHA that receives fewer than 15 Fund program grants in a timely manner such projects, through appropriate points will be categorized as a on capital and modernization needs. application of the adjustment. substandard management operations (b) Thresholds. (b) Definitions. Definitions and agency. (1) The PHA’s Capital Fund program application of physical condition and score is based on a maximum of 10 neighborhood environment factors are: Subpart E—Capital Fund Program points. (1) Physical condition adjustment Indicator (2) In order to receive a passing score applies to projects at least 28 years old, under the Capital Fund program based on the unit-weighted average Date § 902.50 Capital Fund program indicator, a PHA must achieve a score assessment. of Full Availability (DOFA) date. of at least 5 points, or 50 percent. (2) Neighborhood environment (a) Objective. The Capital Fund adjustment applies to projects located in program indicator examines the period Subpart F—PHAS Scoring census tracts where at least 40 percent of time taken by a PHA to obligate funds of the families have an income below and occupy units in relation to statutory § 902.60 Data collection. the poverty rate, as documented by the deadlines for obligation for all Capital (a) Fiscal year reporting period— most recent census data. If a project is Fund program grants for which fund limitation on changes after PHAS located in more than one census tract, balances remain during the assessed effective date. To allow for a period of the census data for the census tract fiscal year. Funds from the Capital Fund consistent assessments to refine and where the majority of the project’s units program under section 9(d) of the Act make necessary adjustments to PHAS, a are located shall be used. (42 U.S.C. 1437g(d)) do not include PHA is not permitted to change its fiscal (c) Adjustment for physical condition HOPE VI program funds. year for the first 3 full fiscal years and neighborhood environment. HUD (b) Applicability. This indicator is following the effective date of this will adjust the management operations applicable on a PHA-wide basis, and not regulation, unless such change is score of a project, subject to one or both to individual projects. This indicator is approved by HUD for good cause. of the physical condition and not applicable to PHAs that choose not (b) Request for extension of time to neighborhood environment conditions. to participate in the Capital Fund submit unaudited financial information. The adjustments will be made to the program under section 9(d) of the Act. In the event of extenuating

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circumstances, a PHA may request management operations information is after a PHA’s audit report for the fiscal extensions of time to submit its derived from the financial condition year being assessed is transmitted to unaudited financial information. To submission. HUD. If significant differences are noted receive an extension, a PHA must between unaudited and audited results, ensure that HUD receives the extension § 902.62 Failure to submit data. a PHA’s PHAS score will be adjusted in request electronically 15 days before the (a) Failure to submit data by due date. accordance with the audited results. submission due date. The PHA’s (1) If a PHA without a finding of good (2) A PHA’s PHAS score under electronic extension request must cause by HUD does not submit its year- individual indicators or subindicators, include an objectively verifiable end financial information, required by or its overall PHAS score, may be justification as to why the PHA cannot this part, or submits its unaudited year- changed by HUD in accordance with submit the information by the end financial information more than 15 data included in the audit report or submission due date. PHAs shall submit days past the due date, appropriate obtained through such sources as HUD their requests for extensions of time for sanctions may be imposed, including a project management and other reviews, the submission of unaudited financial reduction of one point in the total PHAS investigations by HUD’s Office of Fair information through the FASS–PH score for each 15-day period past the Housing and Equal Opportunity, Secure Systems Web site. HUD shall due date. investigations or audits by HUD’s Office forward its determination electronically (2) If the unaudited year-end financial of Inspector General, or reinspection by to the requesting PHA. information is not received within 3 HUD, as applicable. (c) Request for waiver of due date for months past the due date, or extended (b) Issuance of a score by HUD. (1) An PHA submission of audited financial due date, the PHA will receive a overall PHAS score will be issued for information. (1) HUD, for good cause, presumptive rating of failure for its each PHA after the later of one month may grant PHAs a waiver of the due unaudited information and shall receive after the submission due date for date of the submission of audited zero points for its unaudited financial financial data or one month after financial information to HUD. HUD information and the final financial submission by the PHA of its financial shall consider written requests from condition indicator score. The data. The overall PHAS score becomes PHAs for a waiver of the report subsequent timely submission of the PHA’s final PHAS score after any submission due date (established by the audited information does not negate the adjustments requested by the PHA and Single Audit Act and OMB Circular score of zero received for the unaudited determined necessary under the A–133 as no later than 9 months after year-end financial information processes provided in §§ 902.25(d), the end of the fiscal year). The PHA’s submission. 902.35(a), and 902.68; any adjustments (3) The PHA’s audited financial written request for a waiver of the due resulting from the appeal process date of the submission of audited statement must be received no later than provided in § 902.69; and any financial information must include an 9 months after the PHA’s fiscal year- adjustments determined necessary as a objectively verifiable justification as to end, in accordance with the Single result of the independent public why the PHA cannot submit the Audit Act and OMB Circular A–133 (see accountant (IPA) audit. information by the submission due date. § 902.33(c)). If the audited financial (2) Each PHA (or RMC) shall post a A PHA shall submit its written request statement is not received by that date, notice of its final PHAS score and for such a waiver, 30 days prior to the the PHA will receive a presumptive designation in appropriate conspicuous submission due date, to its local field rating of failure for the financial and accessible locations in its offices office. HUD shall forward its written condition indicator. within 2 weeks of receipt of its final determination of the waiver request to (b) Verification of information PHAS score and designation. In the PHA and, if appropriate, establish a submitted. (1) A PHA’s year-end addition, HUD will post every PHA’s new submission due date for the financial information and any PHAS score and designation on HUD’s audited financial information. supporting documentation are subject to Internet site. (2) A waiver of the due date for the review by an independent auditor, as submission of audited financial authorized by section 6(j)(6) of the Act (c) Review of audit. (1) Quality control information to HUD does not relieve a (42 U.S.C. 1437(d)(j)(6)). Appropriate review. HUD may undertake a quality PHA of its responsibility to submit its sanctions for intentional false control review of the audit work papers audited information to OMB’s Federal certification will be imposed, including or as part of the Department’s ongoing Audit Clearinghouse no later than 9 civil penalties, suspension or debarment quality assurance process. months after the end of its fiscal year. of the signatories, the loss of high (2) Determination of deficiency. If (d) Rejected unaudited financial performer designation, a lower score HUD determines that the PHA’s submissions. When HUD rejects a PHA’s under the financial condition indicator, financial statements, electronic financial year-end unaudited financial and a lower overall PHAS score. submission, or audit are deficient, it information after the due date, a PHA (2) A PHA that cannot provide shall notify the PHA of such shall have 15 days from the date of the justifying documentation to HUD for the determination in writing. The PHA will rejection to resubmit the information assessment under any indicator(s) or have 30 days in which to respond to the without a penalty being applied, in subindicator(s) shall receive a score of notice of deficiency and to establish that accordance with § 902.62. zero for the relevant indicator(s) or the determination is erroneous. (e) Late points and late presumptive subindicator(s) and its overall PHAS Following consideration of any PHA failure. Late points and late presumptive score shall be lowered accordingly. response, HUD will issue a final failure will only be applied to the (c) Failure to submit. If a PHA does determination in writing to the PHA. financial condition indicator since the not submit its unaudited or audited (i) Deficient financial statements. management operations information is information, it will receive a zero for Deficient financial statements are derived from the financial condition management operations. statements that are not presented, in submission. some material respect, in accordance (f) Score change. A management § 902.64 PHAS scoring and audit reviews. with accounting principles generally operations score can change as a result (a) Adjustments to PHAS score. (1) accepted in the United States, as set of the audited submission since the Adjustments to the score may be made forth by the Government Accounting

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Standards Board, or if applicable, the including areas not assessed under evidence; written material from an Financial Accounting Standards Board. PHAS. Areas of substantial objective source, such as a local fire (ii) Deficient electronic submission. A noncompliance include, but are not marshal or building code official or a deficient electronic financial limited to, noncompliance with civil licensed or registered architect or submission is a filing that was not rights, nondiscrimination and fair professional engineer with the authority made, in some material respect, in housing laws and regulations, or the to sign and seal or ‘‘stamp’’ documents, accordance with HUD requirements or ACC. Substantial noncompliance casts thus taking the legal responsibility for attested to in accordance with the doubt on the capacity of a PHA to them, or other similar evidence that is Standards for Attestation Engagements preserve and protect its public housing specific to the inspectable area and item issued by the American Institute of projects and operate them consistent being challenged. The evidence must be Certified Public Accountants or with federal laws and regulations. more than a disagreement with the Generally Accepted Government (b) High performer and standard inspector’s observations, or the Auditing Standards. designations. If a high performer inspector’s finding regarding the (iii) Deficient audit. A deficient audit designation is denied or rescinded, the severity of the deficiency. is one that was not performed, in some PHA shall be designated either a (3) A technical review of a project’s material respect, in compliance with standard performer, substandard physical inspection will not be Generally Accepted Government performer, or troubled performer, conducted based on conditions that Auditing Standards; Generally Accepted depending on the nature and were corrected subsequent to the Auditing Standards; the Single Audit seriousness of the matter or matters inspection, nor will a request for a Act and OMB Circular A–133, when constituting the basis for HUD’s action. technical review be considered if the applicable; or HUD requirements. If a standard performer designation is request is based on a challenge to the (3) HUD actions. If HUD determines denied or rescinded, the PHA shall be inspector’s findings as to the severity of that the financial statements, electronic designated as a substandard performer the deficiency (i.e., minor, major, or financial submission, or audit are or troubled performer. severe). deficient, HUD may adjust the financial (c) Effect on score. The denial or (4) Upon receipt of a PHA’s request indicator score to zero and/or reduce the rescission of a designation of high for technical review of a project’s overall PHAS score in accordance with performer or standard performer shall inspection results, the PHA’s file will be the provisions of this section. not affect the PHA’s numerical PHAS reviewed, including any objectively Additionally, if HUD determines that score, except where the denial or verifiable evidence produced by the the audit is deficient, HUD may, at its rescission is under paragraph (a)(4) of PHA. If HUD’s review determines that discretion, elect to serve as the audit this section. an objectively verifiable and material committee for the PHA for the next error(s) has been documented, then one fiscal year and select the audit firm that § 902.68 Technical review of results of or a combination of the following PHAS physical condition indicator. will perform the audit in question. actions may be taken by HUD: (a) Request for technical reviews. This (i) Undertake a new inspection; § 902.66 Withholding, denying, and section describes the process for (ii) Correct the physical inspection rescinding designation. requesting and granting technical report; (a) Withholding designation. In reviews of physical inspection results. (iii) Issue a corrected physical exceptional circumstances, even though (1) For these reviews, the burden of condition score; and a PHA has satisfied all of the PHAS proof is on the PHA to show that an (iv) Issue a corrected PHAS score. indicators for high performer or error occurred. (5) In determining whether a new standard performer designation, HUD (2) A request for technical review inspection of the project is warranted may conduct any review as it may must be submitted in writing to the Real and a new PHAS score must be issued, determine necessary, and may deny or Estate Assessment Center, Attention: the PHA’s file will be reviewed, rescind incentives or high performer TAC—Technical Review, 550 12th including any evidence submitted, to designation or standard performer Street, SW., Suite 100, Washington, DC determine whether the evidence designation, in the case of a PHA that: 20410 and must be received by HUD no supports that there may have been a (1) Is operating under a special later than 30 days following the material contractor error in the agreement with HUD (e.g., a civil rights issuance of the applicable results to the inspection that results in a significant compliance agreement); PHA. change from the project’s original (2) Is involved in litigation that bears (b) Technical review of results of physical condition score and the PHAS directly upon the physical, financial, or physical inspection results. (1) For each designation assigned to the PHA management performance of a PHA; project inspected, the results of the (i.e., high performer, standard (3) Is operating under a court order; physical inspection and a score for that performer, substandard performer, or (4) Demonstrates substantial evidence project will be provided to the PHA. If troubled performer). If HUD determines of fraud or misconduct, including the PHA believes that an objectively that a new inspection is warranted, and evidence that the PHA’s certifications, verifiable and material error(s) occurred the new inspection results in a submitted in accordance with this part, in the inspection of an individual significant change from the original are not supported by the facts, as project, the PHA may request a physical condition score, and from the evidenced by such sources as a HUD technical review of the inspection PHA’s PHAS score and PHAS review, routine reports, an Office of results for that project. Material errors designation, the PHA shall be issued a Inspector General investigation/audit, are the only grounds for technical new PHAS score. an independent auditor’s audit, or an review of physical inspection results. (6) Material errors are those that investigation by any appropriate legal (2) A PHA’s request for a technical exhibit specific characteristics and meet authority; or review must be accompanied by the specific thresholds. The three types of (5) Demonstrates substantial PHA’s evidence that an objectively material errors are: noncompliance in one or more areas of verifiable and material error(s) has (i) Building data error. A building a PHA’s required compliance with occurred. The documentation submitted data error occurs if the inspection applicable laws and regulations, by the PHA may be photographic includes the wrong building or a

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building that was not owned by the (3) A PHA may not appeal its PHAS appeal and its merits for purposes of PHA, including common or site areas score, Capital Fund program score, or determining whether a reassessment of that were not a part of the project. both, based on the fact that it did not the PHA is warranted. HUD will review Incorrect building data that does not submit its Capital Fund program the PHA’s file and the evidence affect the score, such as the address, information to eLOCCS by the submitted by the PHA to determine building name, year built, etc., would submission due date. whether an error occurred. not be considered material, but will (c) Appeal and petition procedures. (2) Consideration of an appeal of nonetheless be corrected upon notice to (1) To appeal a troubled performer refusal to remove a troubled performer HUD. designation or a final overall PHAS designation. Upon receipt of an appeal (ii) Unit count error. A unit count score, a PHA must submit a request in of refusal to remove a troubled error occurs if the total number of writing to the Deputy Assistant performer designation, HUD will public housing units considered in Secretary of the Real Estate Assessment evaluate the appeal and its merits for scoring is incorrect. Since scoring uses Center, which must be received by HUD the purposes of determining whether a total public housing units, HUD will no later than 30 days following the reassessment of the PHA is warranted. examine instances where the participant issuance of the overall PHAS score to The HUD staff initially evaluating an can provide evidence that the total units the PHA. To petition the removal of a appeal of refusal to remove a troubled used is incorrect. troubled performer designation, a PHA performer designation will not be the (iii) Nonexistent deficiency error. A must submit its request in writing to the same HUD staff who evaluated the nonexistent deficiency error occurs if Deputy Assistant Secretary of the Real PHA’s petition to remove the troubled the inspection cites a deficiency that Estate Assessment Center. performer designation. The Assistant does not exist. (2) To appeal the denial of a petition Secretary will render the final (7) HUD’s decision on a request for to remove a troubled performer determination of such an appeal. technical review is final and may not be designation, a PHA must submit a (f) Notice and finality of decisions. further appealed under the written request to the Deputy Assistant (1) If HUD determines that one or more administrative process in § 902.69. Secretary of the Real Estate Assessment objectively verifiable and material error Center, which must be received by HUD has occurred, HUD will undertake a § 902.69 PHA right of petition and appeal. no later than 30 days after HUD’s new inspection of the project, arrange (a) Appeal of troubled performer decision to refuse to remove the PHA’s for audit services, adjust the PHA’s designation and petition for removal of troubled performer designation. score, or perform other reexamination of troubled performer designation. A PHA (3) To appeal the petition for the the financial, management, or Capital may take any of the following actions: removal of a troubled performer Fund program information, as (1) Appeal its troubled performer designation, or appeal the denial of a appropriate in light of the nature of the designation (including Capital Fund petition to remove a troubled performer error that occurred. A new score will be program troubled performer designation, a PHA shall submit its issued and an appropriate performance designation); request in writing to the Deputy designation made by HUD. HUD’s (2) Appeal its final overall PHAS Assistant Secretary of the Real Estate decision on appeal of a PHAS score, score; Assessment Center. issuance of a troubled performer (4) An appeal of a troubled performer (3) Petition for removal of troubled designation, or refusal to remove a designation, the petition for removal of performer designation; troubled performer designation will be (4) Appeal any refusal of a petition to a troubled performer designation, or the final agency action. No reconsideration remove troubled performer designation; appeal of a refusal of a petition to will be given by HUD of such decisions. and remove a troubled performer (2) HUD will issue a written decision (5) Appeal actions under § 902.66. designation must include the PHA’s on all appeals and petitions made under (b) Appeal of PHAS score. (1) If a PHA supporting documentation and reasons this section. believes that an objectively verifiable for the appeal or petition. An appeal of and material error(s) exists in any of the a PHAS score must be accompanied by Subpart G—PHAS Incentives and scores for its PHAS indicators, which, if the PHA’s evidence that a material error Remedies corrected, will result in a significant occurred. An appeal or petition change in the PHA’s PHAS score and its submitted to HUD without supporting § 902.71 Incentives for high performers. designation (i.e., as troubled performer, documentation will not be considered (a) Incentives for high performer substandard performer, standard and will be returned to the PHA. PHAs. A PHA that is designated a high performer, or high performer), the PHA (d) Denial, withholding, or rescission. performer will be eligible for the may appeal its PHAS score in A PHA that disagrees with the basis for following incentives, and such other accordance with the procedures of denial, withholding, or rescission of its incentives that HUD may determine paragraphs (c), (d), and (e) of this designation under § 902.66 may make a appropriate and permissible under section. A significant change in a PHAS written request for reinstatement within program statutes or regulations. score is a change that would cause the 30 days of notification by HUD of the (1) Relief from specific HUD PHA’s PHAS score to increase, resulting denial or rescission of the designation to requirements. A PHA that is designated in a higher PHAS designation for the the Assistant Secretary, and the request a high performer will be relieved of PHA (i.e., from troubled performer to shall include reasons for the specific HUD requirements (e.g., will substandard performer or standard reinstatement. receive fewer reviews and less performer, or from standard performer (e) Consideration of petitions and monitoring), effective upon notification to high performer). appeals. (1) Consideration of a petition of a high performer designation. (2) A PHA may not appeal its PHAS or the appeal of a final overall PHAS (2) Public recognition. High performer score, physical condition score, or both, score, of a troubled performer PHAs and RMCs that receive a score of based on the subsequent correction of designation, or of a petition to remove at least 60 percent of the points deficiencies identified as a result of a troubled performer designation. Upon available for the physical condition, project’s physical inspection or the receipt of such an appeal or a petition financial condition, and management denial of a technical review request. from a PHA, HUD will evaluate the operations indicators, and at least 50

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percent of the points available for the operations, or financial condition PHAS progress unacceptable, HUD will notify Capital Fund indicator, and achieve an indicators, shall be required to correct the PHA (or DF–RMC or RMC) that it overall PHAS score of 90 percent or the deficiencies in performance within will take such actions as it may greater of the total available points the time period for correction. If the determine appropriate in accordance under PHAS shall be designated a high PHA fails to correct the deficiencies, with the provisions of the 1937 Act and performer and will receive a Certificate HUD may require the PHA to enter into other statutes, the ACC, this part, and of Commendation from HUD, as well as a Corrective Action Plan, or take other other HUD regulations, including, but special public recognition, as provided action, as appropriate. not limited to, the remedies available for by the field office. (3) A PHA with a project(s) that substantial default. (3) Bonus points in funding receives less than 60 percent of the competitions. A high performer PHA points available for the physical § 902.75 Troubled performers. may be eligible for bonus points in condition, management operations, or (a) General. Upon a PHA’s HUD’s funding competitions, where financial condition PHAS indicators, or designation as a troubled performer, in such bonus points are not restricted by less than 50 percent of the points accordance with the requirements of statute or regulation governing the available for the capital fund indicator, section 6(j)(2)(B) of the Act (42 U.S.C. funding program and are provided in shall be required to correct the 1437d(j)(2)(B)) and in accordance with the relevant notice of funding deficiencies in performance within the this part, HUD must notify the PHA and availability. time period for correction, as stated in shall refer each troubled performer PHA (b) Compliance with applicable § 902.73(b). If the PHA fails to correct to the PHA’s field office, or other federal laws and regulations. Relief from the deficiencies within the time period designated office(s) at HUD, for any standard procedural requirement allowed, HUD may either require the remedial action, oversight, and that may be provided under this section PHA to enter into a Corrective Action monitoring. The actions to be taken by does not mean that a PHA is relieved Plan, or take other action, as HUD and the PHA will include from compliance with the provisions of appropriate. statutorily required actions, and such federal law and regulations or other (b) Correction of deficiencies. (1) Time other actions as may be determined handbook requirements. For example, period for correction. After a PHA’s (or appropriate by HUD. although a high performer or standard DF–RMC’s) receipt of its final overall (b) Memorandum of agreement performer may be relieved of PHAS score and designation as: A (MOA). Within 30 days of notification of requirements for prior HUD approval for standard performer, within the range a PHA’s designation as a troubled certain types of contracts for services, described in § 902.73(a)(1); or performer, HUD will initiate activities to the PHA must still comply with all substandard performer, within the range negotiate and develop an MOA. An other federal and state requirements that described in § 902.73(a)(2), or, in the MOA is required for a troubled remain in effect, such as those for case of an RMC, after notification of its performer. The final MOA is a binding competitive bidding or competitive score from a PHA, a PHA or RMC shall contractual agreement between HUD negotiation (see 24 CFR 85.36). correct any deficiency indicated in its and a PHA. The scope of the MOA may (c) Audits and reviews not relieved by assessment within 90 days, or within vary depending upon the extent of the designation. A PHA designated as a high such period as provided in the HUD- problems present in the PHA. It shall performer or standard performer executed Corrective Action Plan, if include, but not be limited to: remains subject to: required. (1) Baseline data, which should be (1) Regular independent auditor (2) Notification and report to regional data without adjustments or weighting audits; or field office. A PHA shall notify the but may be the PHA’s score in each of (2) Office of Inspector General audits regional or field office of its action to the PHAS indicators or subindicators or investigations as circumstances may correct a deficiency. A PHA shall also identified as a deficiency; warrant; and forward to the regional or field office an (2) Performance targets for such (3) Reviews identified by the regional RMC’s report of its action to correct a periods specified by HUD (e.g., annual, or field office in its current Risk deficiency. A DF–RMC shall forward semiannual, quarterly, monthly), which Assessment of PHAs and projects. directly to the regional or field office its may be the attainment of a higher score report of its action to correct a within an indicator or subindicator that § 902.73 PHAs with deficiencies. deficiency. is a problem, or the description of a goal (a) Oversight and action. Standard (c) Failure to correct deficiencies. to be achieved; and substandard performers will be (1) If a PHA (or DF–RMC or RMC) fails (3) Strategies to be used by the PHA referred to the field office for to correct deficiencies within the time in achieving the performance targets appropriate oversight and action. period noted in paragraph (b) of this within the time period of the MOA, (1) A standard performer that receives section, or to correct deficiencies within including the identification of the party a total score of at least 60 percent shall the time specified in a Corrective Action responsible for the completion of each be required to correct the deficiencies in Plan, or within such extensions as may task and for reporting progress; performance within the time period for be granted by HUD, the field office will (4) Technical assistance to the PHA correction, as stated in § 902.73(c). If the notify the PHA of its noncompliance. provided or facilitated by HUD; for PHA fails to correct the deficiencies, (2) The PHA (or DF–RMC or RMC) example, the training of PHA employees HUD may either require the PHA to will provide the field office with its in specific management areas or enter into a Corrective Action Plan, or reasons for lack of progress in assistance in the resolution of HUD may take other action, as negotiating, executing, or carrying out outstanding HUD monitoring findings; appropriate. the Corrective Action Plan, within 30 (5) The PHA’s commitment to take all (2) A substandard performer, i.e., a days of the PHA’s receipt of the actions within its control to achieve the PHA that achieves a PHAS score of at noncompliance notification. HUD will targets; least 60 percent and achieves a score of advise the PHA as to the acceptability (6) Incentives for meeting such less than 60 percent of the total points of its reasons for lack of progress. targets, such as the removal of a available under one or more of the (3) If HUD finds the PHA’s (or DF– troubled performer designation or physical condition, management RMC or RMC’s) reasons for lack of troubled with respect to the program for

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assistance from the Capital Fund (1) The PHA Board Chairperson within the first year that started on the program under section 9(d) of the Act (supported by a Board resolution), or a date on which the PHA received the (42 U.S.C. 1437g(d)) and HUD receiver (pursuant to a court-ordered initial notification of the troubled recognition for the most-improved receivership agreement, if applicable) or designation, but fails to achieve the PHAs; other AME acting in lieu of the PHA minimum passing score of 60 points (7) The consequences of failing to Board; after the second year after the initial meet the targets, which include, but are (2) The PHA Executive Director, or a notification, HUD will notify the PHA not limited to, the interventions stated designated receiver (pursuant to a court- that it will take such actions as it may in 24 CFR part 907 and in section 6(j)(3) ordered receivership agreement, if determine appropriate in accordance of the Act (42 U.S.C. 1437d(j)(3)); and applicable), or other AME-designated with the provisions of the ACC and (8) A description of the involvement Chief Executive Officer; and other HUD regulations, including, but of local public and private entities, (3) The field office not limited to, the remedies available for including PHA resident leaders, in (f) Involvement of resident leadership substantial default. carrying out the agreement and in the MOA. HUD encourages the (h) Audit review. For a PHA rectifying the PHA’s problems. A PHA inclusion of the resident leadership in designated as a troubled performer, shall have primary responsibility for the execution of the MOA. HUD may perform an audit review and obtaining active local public and private (g) Failure to execute MOA or make may, at its discretion, select the audit entity participation, including the substantial improvement under MOA. firm that will perform the audit of the involvement of public housing resident (1) If a troubled performer PHA fails or PHA; and HUD may, at its discretion, leaders, in assisting PHA improvement refuses to execute an MOA within the serve as the audit committee for the efforts. Local public and private entity period provided in paragraph (c) of this audit in question. participation should be premised upon section, or a troubled performer PHA (i) Continuation of services to the participant’s knowledge of the PHA, operating under an executed MOA does residents. To the extent feasible, while ability to contribute technical expertise not show a substantial improvement, as a PHA is in a troubled performer status, with regard to the PHA’s specific provided in paragraph (d) of this all services to residents will continue problem areas, and authority to make section, toward a passing PHAS score uninterrupted. preliminary commitments of support, following the issuance of the failing financial or otherwise. PHAS score by HUD, the field office § 902.79 Verification and records. (c) PHA review of MOA. The PHA will shall refer the PHA to the Assistant All project and PHA certifications, have 10 days to review the MOA. Secretary to determine such remedial year-end financial information, and During this 10-day period, the PHA actions, consistent with the provisions supporting documentation are subject to shall resolve any claimed discrepancies of the ACC and other HUD regulations, HUD verification at any time, including in the MOA with HUD, and discuss any including, but not limited to, remedies review by an independent auditor. All recommended changes and target dates available for substantial default. PHAs must retain supporting for improvement to be incorporated in (2) For purposes of paragraph (g) of documents for any certifications and for the final MOA. Unless the time period this section, substantial improvement is asset management reviews for at least 3 is extended by HUD, the MOA is to be defined as the improvement required by years. Failure to maintain and provide executed 15 days following issuance of paragraph (d) of this section. The supporting documentation for a period the draft MOA. maximum period of time for remaining of 3 years for any indicator(s), (d) Maximum recovery period. (1) in troubled performer status before subindicator(s), or other methods used Expiration of the first-year improvement being referred to the Assistant Secretary to assess performance shall result in a period. Upon the expiration of the one- is 2 years after the initial notification of score of zero for the indicator(s) or year period that started on the date on the troubled performer designation. subindicator(s), and a lower overall which the PHA receives initial notice of Therefore, the PHA must make PHAS score for the applicable a troubled performer designation, the substantial improvement in each year of assessment period. PHA shall, by the next PHAS this 2-year period. assessment that is at least 12 months (3) The following example illustrates § 902.81 Resident petitions for remedial after the initial notice of the troubled the provisions of paragraph (g)(1) of this action. performer designation, improve its section: Residents of a PHA designated as performance by at least 50 percent of the Example: A PHA receives a score of troubled pursuant to section 6(j)(2)(A) of difference between the initial PHAS 50 points on the physical condition, the Act (42 U.S.C. 1437d(j)(2)(A)) may assessment score that led to the troubled management operations, or financial petition HUD in writing to take one or performer status and the score necessary condition PHAS indicators; 60 points is more of the actions referred to in section to remove the PHA’s designation as a a passing score. Upon the expiration of 6(j)(3)(A) of the Act (42 U.S.C. troubled performer. the one-year period that started on the 1437d(j)(3)(A)). HUD will consider any (2) Expiration of 2-year recovery date on which the PHA received the petition from a group of residents period. Upon the expiration of the 2- initial notification of the troubled totaling at least 20 percent of the PHA’s year period that started on the date on performer designation, the PHA must residents, or from an organization or which the PHA received the initial achieve at least 55 points (50 percent of organizations of residents whose notice of a troubled performer the 10 points necessary to achieve a membership equals at least 20 percent designation, the PHA shall, by the next passing score of 60 points) to continue of the PHA’s residents. HUD shall PHAS assessment that is at least 24 recovery efforts. In the second year, the respond to such petitions in a timely months after the initial notice of the PHA must achieve a minimum score of manner with a written description of the troubled performer designation, 60 points (a passing score). If, in the first actions, if any, HUD plans to take and, improve its performance and achieve an year that started on the date on which where applicable, the reasons why such overall PHAS score of at least 60 percent the PHA received the initial notification actions differ from the course proposed of the total points available. of the troubled designation, the PHA by the residents. Nothing in this section (e) Parties to the MOA. An MOA shall fails to achieve the 5-point increase, or shall limit HUD’s discretion to be executed by: if the PHA achieves the 5 point increase determine whether a substantial default

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has occurred or to select the appropriate substantial default by a PHA. Nothing in (5) Notify the PHA that, absent a intervention upon such determination. this part shall limit the discretion of satisfactory response in accordance with HUD to take any action available under paragraph (b) of this section, action § 902.83 Sanctions for troubled performer the provisions of section 6(j)(3)(A) of the shall be taken as determined by HUD to PHAs. 1937 Act (42 U.S.C. 1437d(j)(3)(A)), any be appropriate. (a) If a troubled performer PHA fails applicable annual contributions contract (b) Receipt of notification and to make substantial improvement, as set (ACC), or any other law or regulation response. Upon receipt of the forth in § 902.75(d), HUD shall: that may authorize HUD to take actions notification described in paragraph (a) (1) In the case of a troubled performer against a PHA that is in substantial of this section, the PHA may submit a PHA with 1,250 or more units, declare default. response, in writing and within the substantial default in accordance with specified time period, demonstrating: § 907.3(b)(3) of this chapter and petition § 907.3 Bases for substantial default. (1) The description of events, for the appointment of a receiver (a) Violations of laws and agreements. occurrences, or conditions described in pursuant to section 6(j)(3)(A)(ii) of the A PHA may be declared in substantial the written determination of substantial Act (42 U.S.C. 1437d(j)(3)(A)(ii)); or default when the PHA: default is in error, or establish that the (2) In the case of a troubled performer (1) Violates a federal statute; PHA with fewer than 1,250 units, events, occurrences, or conditions (2) Violates a federal regulation; or described in the written determination declare substantial default in (3) Violates one or more terms of an accordance with § 907.3(b)(3) of this of substantial default do not constitute ACC, or other covenants or conditions noncompliance with the statute, chapter and either petition for the to which the PHA is subject. appointment of a receiver pursuant to regulation, covenants, conditions, or (b) Failure to act. In addition to the agreements that are cited in the section 6(j)(3)(A)(ii) of the Act (42 violations listed in paragraph (a) of this U.S.C. 1437d(j)(3)(A)(ii)), or take notification under paragraph (a) of this section, in the case where a PHA is section; or possession of the PHA (including all or designated as a troubled performer (2) If any opportunity to cure is part of any project or program of the under PHAS, the PHA shall be in provided, that the violations have been PHA) pursuant to section 6(j)(3)(A)(iv) substantial default if the PHA: cured or will be cured in the time of the Act (42 U.S.C. 1437d(j)(3)(A)(iv)), (1) Fails to execute an MOA; period specified by HUD. and appoint, on a competitive or (2) Fails to comply with the terms of (c) Waiver of notification and the noncompetitive basis, an individual or an MOA; or entity as an administrative receiver to (3) Fails to show substantial opportunity to respond. A PHA may assume the responsibilities of HUD for improvement, as provided in § 902.75(d) waive, in writing, receipt of written the administration of all or part of the of this chapter. notification from HUD of a finding of PHA (including all or part of any project substantial default and the opportunity or program of the PHA). § 907.5 Procedures for declaring to respond to such finding. HUD may (3) In the case of substantial default substantial default. then immediately proceed with the by a troubled performer PHA, nothing in (a) Notification of finding of remedies as provided in § 907.7. this section shall be construed to limit substantial default. If the PHA is found (d) Emergency situations. A PHA shall the courses of action available to HUD in substantial default, the PHA shall be not be afforded the opportunity to under this part, 24 CFR part 907, or notified of such determination in respond to a written determination or to section 6(j)(3)(A) of the Act (42 U.S.C. writing. Except in situations as cure a substantial default in any case 1437d(j)(3)(A)) for any other substantial described in paragraph (d) of this where: default by a PHA. section, the PHA shall have an (1) HUD determines that conditions (b) If a troubled performer PHA fails opportunity to respond to the written exist that pose an imminent threat to the to execute or meet the requirements of determination, and an opportunity to life, health, or safety of public housing an MOA in accordance with § 902.75, cure the default, if a cure of the default residents or residents of the surrounding other than as specified in paragraph (a) is determined appropriate by HUD. The neighborhood; or of this section, the PHA may be deemed determination of substantial default (2) The events or conditions to be in substantial default by HUD and shall be transmitted to the Executive precipitating the default are determined any remedy available therefore may be Director of the PHA, the Chairperson of to be the result of criminal or fraudulent invoked in the discretion of HUD. the Board of the PHA, and the activity. 3. Add part 907 to read as follows: appointing authority(ies) of the PHA’s Board of Commissioners, and shall: § 907.7 Remedies for substantial default. PART 907—SUBSTANTIAL DEFAULT (1) Identify the specific statute, (a) Except as provided in § 907.7(c), BY A PUBLIC HOUSING AGENCY regulation, covenants, conditions, or upon determining that events have agreements of which the PHA is occurred or conditions exist that Sec. determined to be in violation; constitute a substantial default, HUD 907.1 Purpose and scope. may: 907.3 Bases for substantial default. (2) Identify the specific events, 907.5 Procedures for declaring substantial occurrences, or conditions that (1) Take any action provided for in default. constitute the violation; section 6(j)(3) of the Act (42 U.S.C. 907.7 Remedies for substantial default. (3) Specify the time period, which 1437d(j)(3)); Authority: 42 U.S.C. 1437d(j), 42 U.S.C. shall be a period of 10 but not more than (2) Provide technical assistance for 3535(d). 30 days, during which the PHA shall existing PHA management staff; or have an opportunity to demonstrate that (3) Provide assistance deemed § 907.1 Purpose and scope. the determination or finding is not necessary, in the discretion of HUD, to This part provides the criteria and substantively accurate, if required; remedy emergency conditions. procedures for determining and (4) If determined by HUD to be (b) HUD may take any of the actions declaring substantial default by a public appropriate, provide for an opportunity described in paragraph (a) of this housing agency (PHA) and the actions to cure and specify the time period for section sequentially or simultaneously available to HUD to address and remedy the cure; and in any combination.

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(c) In the case of a substantial default competitive or noncompetitive basis, an projects. For example, HUD may select, by a troubled PHA pursuant to individual or entity as an administrative or participate in the selection of, an § 902.83(b): receiver to assume the responsibilities AME to assume management (1) For a PHA with 1,250 or more of HUD for the administration of all or responsibility for a specific project, a units, HUD shall petition for the part of the PHA (including all or part of group of projects in a geographical area, appointment of a receiver pursuant to any project or program of the PHA). or a specific operational area, while section 6(j)(3)(A)(ii) of the 1937 Act (42 (d) To the extent feasible, while a permitting the PHA to retain U.S.C. 1437d(j)(3)(A)(ii)); or PHA is operating under any of the responsibility for all programs, (2) For a PHA with fewer than 1,250 actions that may have been taken by operational areas, and projects not so units, HUD shall either petition for the HUD, all services to residents will designated. appointment of a receiver pursuant to continue uninterrupted. section 6(j)(3)(A)(ii) of the Act (42 (e) HUD may limit remedies under Dated: February 1, 2011. U.S.C. 1437d(j)(3)(A)(ii)), or take this part to one or more of a PHA’s Sandra B. Henriquez, possession of the PHA (including all or specific operational areas (e.g., Assistant Secretary for Public and Indian part of any project or program of the maintenance, capital improvement, Housing. PHA) pursuant to section 6(j)(3)(A)(iv) occupancy, or financial management), to [FR Doc. 2011–2659 Filed 2–18–11; 8:45 am] of the 1937 Act (42 U.S.C. a single program or group of programs, 1437d(j)(3)(A)(iv)), and appoint, on a or to a single project or a group of BILLING CODE 4210–67–P

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Part IV

Department of the Interior

Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List Astragalus hamiltonii, Penstemon flowersii, Eriogonum soredium, Lepidium ostleri, and Trifolium friscanum as Endangered or Threatened; Rule

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DEPARTMENT OF THE INTERIOR FWS–R6–ES–2010–0087. Supporting endangered or threatened. The petition documentation we used in preparing included the five plant species Fish and Wildlife Service this finding is available for public addressed in this finding. The petition inspection, by appointment, during incorporated all analysis, references, 50 CFR Part 17 normal business hours at the U.S. Fish and documentation provided by Docket No. [FWS–R6–ES–2010–0087; MO and Wildlife Service, Utah Ecological NatureServe in its online database at 92210–0–008] Services Field Office, 2369 West Orton http://www.natureserve.org/. The Circle, Suite 50, West Valley City, UT document clearly identified itself as a Endangered and Threatened Wildlife 84119. Please submit any new petition and included the petitioners’ and Plants; 12-Month Finding on a information, materials, comments, or identification information, as required Petition To List Astragalus hamiltonii, questions concerning this finding to the in 50 CFR 424.14(a). We sent a letter to Penstemon flowersii, Eriogonum above address. the petitioners, dated August 24, 2007, soredium, Lepidium ostleri, and FOR FURTHER INFORMATION CONTACT: acknowledging receipt of the petition Trifolium friscanum as Endangered or Larry Crist, Field Supervisor, U.S. Fish and stating that, based on preliminary Threatened and Wildlife Service, Utah Ecological review, we found no compelling Services Field Office, 2369 West Orton evidence to support an emergency AGENCY: Fish and Wildlife Service, Circle, Suite 50, West Valley City, UT listing for any of the species covered by Interior. 84119; by telephone at 801–975–3330; the petition. ACTION: Notice of 12-month petition or by facsimile at 801–975–3331mailto:. On March 19, 2008, WildEarth finding. If you use a telecommunications device Guardians filed a complaint (1:08–CV– 472–CKK) indicating that the Service SUMMARY: We, the U.S. Fish and for the deaf (TDD), please call the failed to comply with its mandatory Wildlife Service (Service), announce a Federal Information Relay Service duty to make a preliminary 90-day 12-month finding on a petition to list (FIRS) at 800–877–8339. finding on their two multiple species Astragalus hamiltonii (Hamilton SUPPLEMENTARY INFORMATION: petitions—one for mountain-prairie milkvetch), Penstemon flowersii Background species and one for southwest species. (Flowers penstemon), Eriogonum On June 18, 2008, we received a soredium (Frisco buckwheat), Lepidium Section 4(b)(3)(B) of the ESA of 1973, petition from WildEarth Guardians, ostleri (Ostler’s peppergrass), and as amended (16 U.S.C. 1531 et seq.), dated June 12, 2008, to emergency list Trifolium friscanum (Frisco clover) as requires that, for any petition to revise 32 species under the Administrative threatened or endangered under the the Federal Lists of Endangered and Procedure Act and the ESA. Of those 32 Endangered Species Act of 1973 (ESA), Threatened Wildlife and Plants that species, 11 were included in the July 24, as amended. After review of all contains substantial scientific or 2007, petition to be listed on a available scientific and commercial commercial information that listing a nonemergency basis. Although the ESA information, we find that listing A. species may be warranted, we make a does not provide for a petition process hamiltonii and P. flowersii is not finding within 12 months of the date of for an interested person to seek to have warranted at this time. However, we ask receipt of the petition. In this finding, a species emergency listed, section the public to submit to us new we will determine that the petitioned 4(b)(7) of the ESA authorizes the Service information that becomes available action is: (a) Not warranted, (b) to issue emergency regulations to concerning the threats to A. hamiltonii warranted, or (c) warranted, but the temporarily list a species. In a letter and P. flowersii or their habitat at any immediate proposal of a regulation dated July 25, 2008, we stated that the time. We find that listing E. soredium, implementing the petitioned action is information provided in both the 2007 L. ostleri, and T. friscanum as precluded by other pending proposals to and 2008 petitions and in our files did threatened or endangered is warranted. determine whether species are not indicate that an emergency situation However, currently listing E. soredium, threatened or endangered, and existed for any of the 11 species. L. ostleri, and T. friscanum is precluded expeditious progress is being made to by higher priority actions to amend the add or remove qualified species from On February 5, 2009 (74 FR 6122), we Federal Lists of Endangered and the Federal Lists of Endangered and published a 90-day finding on 165 Threatened Wildlife and Plants. Upon Threatened Wildlife and Plants. Section species from the petition to list 206 publication of this 12-month petition 4(b)(3)(C) of the ESA requires that we species in the mountain-prairie region finding, we will add E. soredium, L. treat a petition for which the requested of the United States as endangered or ostleri, and T. friscanum to our action is found to be warranted but threatened under the ESA. We found candidate species list. We will develop precluded as though resubmitted on the that the petition did not present proposed rules to list E. soredium, L. date of such finding, that is, requiring a substantial scientific or commercial ostleri, and T. friscanum as our subsequent finding to be made within information indicating that listing was priorities allow. We will make 12 months. We must publish these 12- warranted for these species and, determinations on critical habitat during month findings in the Federal Register. therefore, did not initiate further status reviews in response to the petition. Two development of the proposed listing Previous Federal Actions rules. In the interim period, we will additional species were reviewed in a address the status of the candidate taxa On July 30, 2007, we received a concurrent 90-day finding and again, we through our annual Candidate Notice of petition dated July 24, 2007, from Forest found that the petition did not present Review. Guardians (now WildEarth Guardians), substantial scientific or commercial requesting that the Service: (1) Consider information indicating that listing was DATES: The finding announced in this all full species in our Mountain Prairie warranted for these species. Therefore document was made on February 23, Region ranked as G1 or G1G2 by the we did not consider these two species 2011. organization NatureServe, except those further. For the remaining 39 species, ADDRESSES: This finding is available on that are currently listed, proposed for we deferred our findings until a later the Internet at http:// listing, or candidates for listing; and date. One species of the 39 remaining www.regulations.gov at Docket Number (2) list each species as either species, Sphaeralcea gierischii (Gierisch

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mallow), was already a candidate Species Information—Astragalus The Utah Natural Heritage Program species for listing; therefore, 38 species hamiltonii (UNHP) designates 11 element occurrences for Astragalus hamiltonii remained for consideration. On March Taxonomy and Species Description 13, 2009, the Service and WildEarth (UNHP 2010a, entire). Element Guardians filed a stipulated settlement Astragalus hamiltonii is a bushy occurrences are the specific locations, or in the District of Columbia Court, perennial plant in the bean family sites, where plants are documented. agreeing that the Service would submit (Fabaceae) that can grow up to 24 inches Distinct element occurrences are to the Federal Register a finding as to (in) (60 centimeters (cm)) tall (Welsh et identified if there is either 0.6 mi (1 km) whether WildEarth Guardians’ petition al. 2003, p. 374). It has several sparsely of unsuitable habitat or 1.2 mi (2 km) of presented substantial information leafed stems, with three to five unoccupied, suitable habitat separating indicating that the petitioned action (sometimes seven) leaflets per leaf, each them (NatureServe 2004, p. 14). 0.8 to 1.6 in (2 to 4 cm) long and 0.2 may be warranted for 38 mountain- Astragalus hamiltonii element to 0.4 in (5 to 10 millimeters (mm)) wide occurrences are based on collections of prairie species by August 9, 2009 (Heil and Melton 1995a, p. 6). The herbarium specimens. Two of the (WildEarth Guardians vs. Salazar 2009, terminal leaflet (at the tip of the leaf) is element occurrences identified by the case 1:08–CV–472–CKK). typically the largest leaflet (NatureServe UNHP were from Colorado and the On August 18, 2009, we published a 2009a, p. 3). In May and June, a single southeast corner of the Uinta Basin, but notice of 90-day finding (74 FR 41649) A. hamiltonii plant will produce many we believe these locations are likely on 38 species from the petition to list flowering stalks, with each stalk bearing A. lonchocarpus, based on leaf 206 species in the mountain-prairie 7 to 30 cream-colored flowers (Welsh et characteristics and geographic region of the United States as al. 2003, p. 374; NatureServe 2009a, distribution (NatureServe 2009a, p. 1; endangered or threatened under the p. 3). The fruits are hanging pods and Goodrich 2010a, entire), so they are not ESA. Of the 38 species, we found that usually mature by the end of June considered further in this finding. the petition presented substantial (NatureServe 2009a, p. 3). Hereafter, we base our analysis on the scientific and commercial information Astragalus hamiltonii was first remaining nine element occurrences for 29 species, indicating that listing described in 1952 (Porter 1952, pp. 159– (Table 1; Goodrich 2010b, entire). may be warranted for those 29 species. 160). Although it was once considered To determine the currently known The 5 species we address in this 12- a variety of A. lonchocarpus (Isely 1983, distribution of Astragalus hamiltonii, month finding were included in these p. 422), A. hamiltonii is currently we mapped the nine UNHP element 29 species. We initiated a status review accepted as a distinct species, based on occurrences (Figure 1). The UNHP of the 29 species to determine if listing leaflet characteristics and geographic records element occurrences using the public land survey system to the nearest was warranted. We also opened a 60- segregation (Barneby 1989, p. 72; Welsh et al. 2003, p. 374). quarter-quarter of the township, range, day public comment period to allow all and section (UNHP 2010a, entire). These Distribution and Population Status interested parties an opportunity to element occurrences were the basis for provide information on the status of the Astragalus hamiltonii occurs our ‘‘population areas,’’ but the 29 species. The public comment period generally west and southwest of Vernal, population areas’ boundaries were closed on October 19, 2009. We received Utah. The species is found on Bureau of expanded to the nearest quarter-quarter 224 public comments. Of these, two Land Management (BLM) land, the of the township, range, and section, to specifically addressed Astragalus Uintah and Ouray Indian Reservation encompass the location data from the hamiltonii, Penstemon flowersii, (hereafter ‘‘Tribal’’) lands, State of Utah 2010 surveys (Table 1; Goodrich 2010b, Eriogonum soredium, Lepidium ostleri, School and Institutional Trust Lands entire). This mapping approach resulted and Trifolium friscanum. All Administration (SITLA) lands, and in some of the newly created population information received has been carefully private lands across an approximate areas’ perimeters eventually abutting considered in this finding. This notice area 10 mile (mi) (16.1 kilometer (km)) adjacent population areas (Table 1; constitutes the 12-month finding on the by 20 mi (32.2 km) (Figure 1). We do not Figure 1). Large areas of potential July 24, 2007, petition to list five species have comprehensive survey information habitat remain unsurveyed, so it is (A. hamiltonii, P. flowersii, E. soredium, for A. hamiltonii. Therefore, we do not possible that the species is continuous L. ostleri, and T. friscanum) as know the full extent of the species’ across its range, or occurs outside of our endangered or threatened. distribution or if the distribution has identified population areas (Figure 1). changed over time. BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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TABLE 1—Astragalus hamiltonii PLANTS COUNTED IN 2010 SURVEYS

Percent land ownership Population area Number of Astragalus BLM SITLA Tribal Private hamiltonii plants

1 ...... 11 54 0 35 Not counted. 2 ...... 76 13 1 11 4,863. 3 ...... 44 56 0 0 544. 4 ...... 0 0 10 90 15. 5 ...... 0 0 89 11 60. 6 ...... 57 5 0 38 10. 7 ...... 0 0 52 48 345. 8 ...... 13 62 0 25 Not counted. 9 ...... 0 0 81 19 Not counted.

Total ...... 30 18 23 28 5,837.

We do not have long-term population flowers and fruit (Goodrich et al. 1999, factors provided in section 4(a)(1) of the count or trend information. The total p. 263). Therefore, we believe the ESA. population of Astragalus hamiltonii was species may be able to tolerate moderate In considering what factors might estimated at 10,000 to 15,000 plants in soil disturbances (Neese and Smith constitute threats to a species, we must 1995 (Heil and Melton 1995a, p. 13). 1982, p. 36; Goodrich et al. 1999, look beyond the exposure of the species However, we do not know how this p. 263). to a particular factor to evaluate whether estimate was derived. In 2010, the U.S. Life History the species may respond to that factor Forest Service (USFS) counted over in a way that causes actual impacts to 5,800 A. hamiltonii individuals on BLM Astragalus hamiltonii growth, the species. If there is exposure to a lands in areas west of Vernal in the seedling establishment, and juvenile factor and the species responds vicinity of six of the element mortality are probably correlated with negatively, the factor may be a threat occurrences (numbers 2 to 7) (Table 1; rainfall (Heil and Melton 1995a, p. 14). and, during the status review, we Goodrich 2010b, entire). These were We do not know the reproductive attempt to determine how significant a partial surveys that included revisits to system for this species, but it is assumed threat it is. The threat is significant if it six element occurrences. to reproduce mainly by outcrossing drives, or contributes to, the risk of Astragalus hamiltonii is distributed (cross-fertilization) (Heil and Melton extinction of the species such that the sparsely across the landscape at low 1995a, p. 14). Plants that are obligate species warrants listing as endangered densities, but in optimum habitat A. outcrossers are self-incompatible, or threatened as those terms are defined hamiltonii can grow at densities of one meaning they cannot fertilize in the ESA. However, the identification 2 to two plants per square yard (yd ) themselves and, therefore, rely on other of factors that could impact a species 2 (square meter (m )) (Heil and Melton individuals of differing genetic make-up negatively may not be sufficient to 1995a, p. 13). Because A. hamiltonii is to reproduce (Stebbins 1970, p. 310). compel a finding that the species scattered across the landscape with Summary of Information Pertaining to warrants listing. The information must unsurveyed, potential habitat between the Five Factors—Astragalus include evidence sufficient to suggest known sites, we believe the known hamiltonii that these factors are operative threats element occurrences may be linked by that act on the species to the point that Section 4 of the ESA (16 U.S.C. 1533) contiguous habitat, and may either be the species may meet the definition of and implementing regulations (50 CFR one large population or a series of endangered or threatened under the part 424) set forth procedures for adding populations within a metapopulation. ESA. species to the Federal Lists of Habitat Endangered and Threatened Wildlife Factor A. The Present or Threatened Astragalus hamiltonii is a narrow and Plants. Under section 4(a)(1) of the Destruction, Modification, or endemic that grows on soils of the ESA, a species may be determined to be Curtailment of Its Habitat or Range Duchesne River formation (Heil and endangered or threatened based on any Melton 1995a, p. 10; Goodrich 2010c, of the following five factors: The following factors may affect the pp. 13, 15). Less frequently, it is found (A) The present or threatened habitat or range of Astragalus in Mowry Shale and Dakota formations destruction, modification, or hamiltonii: (1) Conversion to (Welsh et al. 2003, p. 374). A. hamiltonii curtailment of its habitat or range; agricultural use, (2) livestock grazing, is typically found on benches and steep (B) Overutilization for commercial, (3) recreational activities, (4) oil and gas slopes at elevations of 4,900 to 6,200 recreational, scientific, or educational exploration and development, (5) feet (ft) (1,500 to 1,900 meters (m)). A. purposes; nonnative invasive species, and (6) tar hamiltonii grows in red, erosive, sandy (C) Disease or predation; sands extraction. clay loam soils (Heil and Melton 1995a, (D) The inadequacy of existing (1) Conversion to Agricultural Use pp. 10, 16; NatureServe 2009a, p. 3; regulatory mechanisms; or Brunson 2010a, p. 1), and is associated (E) Other natural or manmade factors Astragalus hamiltonii grows on with low-density desert shrub and affecting its continued existence. private and Tribal lands that can be juniper communities (Goodrich et al. In making our 12-month finding on used for agriculture. Agricultural land 1999, p. 263; NatureServe 2009a, p. 3). the petition, we considered and conversion is a change in land use to an Astragalus hamiltonii grows in old evaluated the best available scientific agricultural use, including crops and road cuts and road beds, sometimes and commercial information pertaining pastures. The conversion to agricultural quite robustly and producing abundant to Astragalus hamiltonii for the five use results in the loss and fragmentation

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of native plant habitats, including negative effects from livestock trampling Energy exploration and development habitats of A. hamiltonii. within A. hamiltonii habitat. Therefore, occurs across Astragalus hamiltonii’s Conversion of natural lands to we do not believe that livestock grazing known range, but only in localized areas agriculture historically impacted is a threat to A. hamiltonii now or for with small numbers of wells (Utah populations of Astragalus hamiltonii the foreseeable future. Division of Oil, Gas, and Mining (Heil and Melton 1995a, p. 16), (UDOGM) 2010, p. 1). Only one well is (3) Recreational Activities particularly in the four population areas producing in A. hamiltonii habitat, and where land ownership is private or Off-highway vehicle (OHV) and another well is currently being drilled. Tribal. However, most of this recreational trail use (e.g., mountain Seventeen wells were plugged and development was limited to lower-lying bikes and motorized bikes) may result in abandoned, most prior to 1976 (Gordon areas outside of A. hamiltonii habitat direct loss or damage to plants and their 2010a, pers. comm.; UDOGM 2010, p. (National Agriculture Imagery Program habitat through soil compaction, 1). Plugged and abandoned wells are no (NAIP) 2009, entire). It is likely that increased erosion, invasion of noxious longer in use and are usually most of the suitable land in Uintah weeds, and disturbance to pollinators recontoured and revegetated to match County, where irrigation water was and their habitat (Eckert et al. 1979, the surrounding landscape (Gordon available, was converted to agricultural entire; Lovich and Bainbridge 1999, p. 2010b, pers. comm.). Plugged and use by 1970 (Hilton 2010, p. 1). Major 316; Ouren et al. 2007, entire; BLM abandoned wells also do not receive changes in the amount of agricultural 2008a, pp. 4–94; Wilson et al. 2009, p. regular truck traffic like producing land in Uintah County are not expected 1). wells, so fugitive dust is less of an issue in the future (Hilton 2010, p. 2). The OHV and recreational trail use (Gordon 2010b, pers. comm.). Although historical conversion to occurs across the landscape where Occasionally, plugged and abandoned agricultural use may have negatively Astragalus hamiltonii grows. The OHV wells may be reopened, disturbing areas impacted A. hamiltonii, we have no use is largely limited to existing roads that were previously reclaimed. If all the evidence to indicate that this factor is a and trails on BLM lands, which account plugged and abandoned wells in A. threat to this species now or for the for approximately a third of A. hamiltonii habitat were reopened, this is foreseeable future. hamiltonii’s known range (Table 1) still a small number of wells throughout (BLM 2008b, p. 46). There are no OHV (2) Livestock Grazing the species’ range. restrictions on private or Tribal lands, Large portions of population areas 1, Livestock grazing may result in the but the species’ association with steep, 2, 3, 6, 7, and 8 (Table 1) are overlapped direct loss or damage to plants and their erosive hillsides likely minimizes OHV by oil and gas leases on state, Tribal, habitat through trampling, soil use in the species’ habitat. and BLM land. Two BLM oil and gas compaction, increased erosion, invasion Unauthorized off-road use occurs in leases in population area 2 overlap more of noxious weeds, and disturbance to Astragalus hamiltonii habitat in than 4,000 known Astragalus hamiltonii pollinators (Kauffman et al. 1983, p. population area 2 (Brunson 2010a, p. 3). individuals (UDOGM, 2010, p. 2). 684; Fleischner 1994, entire; Kearns et However, we observed plants growing However, no oil or gas is being al. 1998, p. 90; DiTomaso 2000, p. 257). directly next to these recreational trails produced under these leases (UDOGM All BLM lands where Astragalus (Brunson 2010a, p. 3). As previously 2010, p. 2). hamiltonii is documented are within described, A. hamiltonii grows along The lack of oil and gas development grazing allotments, including portions road cuts and other disturbed areas, in Astragalus hamiltonii habitat is most of population areas 1, 2, 3, 6, and 8 (see suggesting it can persist with some level likely because there is not enough of Table 1). In 2010, of all A. hamiltonii of disturbance. We do not believe that those products currently obtainable to counted, 5,417 individuals (93 percent) the observed unauthorized off-road use be economically feasible using current occur in existing grazing allotments. We is negatively impacting A. hamiltonii. extraction technology (Doyle 2010, pers. have no information on the extent of In summary, the species’ habitat comm.; Sparger 2010, pers. comm.) grazing on private or Tribal lands. preference for steep slopes, its ability to rendering dense energy developments We do not have any information grow in disturbed soils, and off-road unlikely in this area for the next 20 concerning how grazing may affect this restrictions on BLM lands minimize the years (BLM 2008c, p. 486). Although species. However, cattle tend to spend impacts of recreational use to Astragalus some oil and gas development may more time on gentle slopes (Van Buren hamiltonii. Thus, we do not believe that occur in A. hamiltonii habitat, we 1982 in Fleischner 1994, p. 637). recreational activities are a threat to A. would not expect it at densities that Astragalus hamiltonii grows on steep, hamiltonii now or for the foreseeable would significantly impact the species. erosive hillsides, and we believe this future. Furthermore, A. hamiltonii is adapted to habitat preference offers some at least some disturbance and may be protection from livestock grazing and (4) Oil and Gas Exploration and afforded additional protection by its trampling. In addition, the grazing Development tendency to grow on steep slopes that allotments that overlap A. hamiltonii The effects of oil and gas exploration may be unsuitable for energy sites on BLM land are fall and winter and development include increased development. Therefore, oil and gas allotments (BLM 2008a, Appendix J); vehicle traffic and removal of soil and development is unlikely to occur in the thus, A. hamiltonii is not actively vegetation when wells, roads, and foreseeable future at densities that growing or palatable when livestock are associated infrastructure are built (BLM would significantly impact the species. grazing these areas. 2008c, pp. 448–449). These disturbances In summary, there is little oil and gas In summary, the species occurs in can affect rare plant species through development within Astragalus areas that are subject to livestock habitat destruction, habitat hamiltonii habitat. Based on current grazing. However, the fall-winter season fragmentation, soil disturbance, spread technologies and low economic of grazing greatly reduces the chance of invasive weeds, and production of feasibility, we do not anticipate that the plants are eaten by livestock. fugitive dust (particulate matter substantial development in the Astragalus hamiltonii typically grows suspended in the air by wind and foreseeable future that would on steep slopes and can occur on human activities) (BLM 2008c, pp. 448– meaningfully impact the species. disturbed soils, which minimizes 449). Therefore, we do not believe that oil and

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gas exploration and development is a In summary, we know that invasive Summary of Factor A threat to A. hamiltonii now or in the species can impact plant communities Based on the best available foreseeable future. by increasing fire frequencies, information, we have concluded that outcompeting native species, and (5) Nonnative Invasive Species conversion to agricultural use, livestock altering pollinator behaviors. These grazing, recreational activities, The spread of nonnative invasive factors could be exacerbated by climate nonnative invasive species, oil and gas species is considered the second largest change patterns. However, invasive exploration and development, or tar threat to imperiled plants in the United species do not occur in high densities in sands extraction do not threaten States (Wilcove et al. 1998, p. 608). Astragalus hamiltonii habitat. Based on Astragalus hamiltonii now or in the Invasive plants—specifically exotic this fact and the limited amount of foreseeable future. Conversion to annuals—negatively affect native surface-disturbing activities within the agricultural use probably resulted in vegetation, including rare plants. One of species’ habitat, we do not anticipate historical loss of some A. hamiltonii the most substantial effects is the that nonnative invasive species habitat, but we do not anticipate change in vegetation fuel properties densities will increase significantly, ongoing conversions to agricultural use that, in turn, alter fire frequency, even with climate change. Therefore, we in the future. In addition, most intensity, extent, type, and seasonality do not believe nonnative invasive agricultural use occurs in low-lying (Menakis et al. 2003, pp. 282–283; species, or associated fires, are a threat areas outside of the species’ Brooks et al. 2004, p. 677; McKenzie et to A. hamiltonii now or for the distribution. A. hamiltonii is protected al. 2004, p. 898). Shortened fire return foreseeable future. from livestock grazing due to its habitat intervals make it difficult for native (6) Tar Sands Extraction preference for steep hillsides and the plants to reestablish or compete with fall-winter grazing season of the invasive plants (D’Antonio and Vitousek The Duchesne River Formation, associated allotments. Recreational use 1992, p. 73). where most known Astragalus is not a threat to A. hamiltonii because Invasive plants can exclude native hamiltonii individuals occur, would be BLM restricts off-trail use. Where off- plants and alter pollinator behaviors one of the formations targeted by tar trail use occurs on private, State, and (D’Antonio and Vitousek 1992, pp. 74– sands extraction (BLM 2008d, p. 9). Tar Tribal lands, the adaptation of A. 75; DiTomaso 2000, p. 257; Mooney and sands extraction disturbs the soil hamiltonii to steep slopes and disturbed Cleland 2001, p. 5449; Levine et al. surface and removes existing vegetation soils allows it to persist with moderate 2003, p. 776; Traveset and Richardson (BLM 2008d, p. 27). Impacts are similar habitat disturbance. A. hamiltonii soils 2006, pp. 211–213). For example, to those described above in the Oil and do not appear to support invasive plant Bromus tectorum outcompetes native Gas Exploration and Development species at densities needed to sustain species for soil nutrients and water section. Tar sands mining could result wildfires. We also do not anticipate (Melgoza et al. 1990, pp. 9–10; Aguirre in the loss of A. hamiltonii individuals increased surface disturbances that and Johnson 1991, pp. 352–353). and their habitats. could encourage the establishment of Bromus tectorum (cheatgrass) is a Tar sands leases are proposed for sale invasive species in A. hamiltonii particularly problematic nonnative on BLM and State Lands along Asphalt habitat. Although energy development invasive annual grass in the Ridge southwest of Vernal, Utah leases overlap A. hamiltonii habitat, it is Intermountain West. If already present (UDOGM 2010, p. 3). These lease unlikely that current technologies and in the vegetative community, B. parcels do not overlap known economic conditions will support oil tectorum increases in abundance after a Astragalus hamiltonii sites, but they and gas or tar sands development in this wildfire, increasing the chance for more overlap with unsurveyed potential area in the foreseeable future. Thus, the frequent fires (D’Antonio and Vitousek habitat within portions of population present or threatened destruction, 1992, pp. 74–75). In addition, B. area 1. modification, or curtailment of the tectorum invades areas in response to Tar sands leases are still in the habitat or range is not a threat to A. surface disturbances (Hobbs 1989, pp. proposal phase and there are currently hamiltonii now or in the foreseeable 389, 393, 395, 398; Rejmanek 1989, pp. no commercial tar sands operations on future. 381–383; Hobbs and Huenneke 1992, public lands in Utah (BLM 2008d, p. 4). pp. 324–325, 329, 330; Evans et al. High production costs and Factor B. Overutilization for 2001, p. 1308). B. tectorum is likely to environmental issues are barriers to tar Commercial, Recreational, Scientific, or increase due to climate change (see sands development in the United States Educational Purposes Factor E) because invasive annuals (Bartis et al. 2005, pp. 15, 53; Engemann Astragalus hamiltonii is not a plant of increase biomass and seed production at and Owyang 2010, entire). Tar sands horticultural interest. We are not aware elevated levels of carbon dioxide extraction may be feasible if the cost of of any instances where A. hamiltonii (Mayeux et al. 1994, p. 98; Smith et al. crude oil becomes high enough in the was collected from the wild other than 2000, pp. 80–81; Ziska et al. 2005, p. future, but these high price projections as voucher specimens to document 1328). are not expected to be realized until at occurrences (UNHP 2010a, entire). Bromus tectorum occurs in Astragalus least 2030 (Engemann and Owyang Therefore, we do not consider hamiltonii habitat (Brunson 2010a, p. 1). 2010, p. 2), and even then the overutilization a threat to the species However, B. tectorum and other environmental issues will need to be now or in the foreseeable future. invasive species are uncommon in many resolved. of the erosive red soils that A. In summary, tar sands leases do not Factor C. Disease or Predation hamiltonii prefers (Brunson 2010a, p. 1; overlap a majority of Astragalus We do not have any information Goodrich 2010c, p. 59). We do not hamiltonii habitat. Large-scale, indicating that disease impacts anticipate a high degree of surface commercially viable development is not Astragalus hamiltonii. We also do not disturbances in A. hamiltonii habitats in anticipated in the foreseeable future. have information on the effects of the foreseeable future from other factors, Therefore, tar sands development is not herbivory (eating) by livestock (see the such as livestock grazing or oil and gas considered a threat to A. hamiltonii now Livestock Grazing section above), development (Factor A). or in the foreseeable future. wildlife, or insects. However, we do not

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believe herbivory from livestock is a 1993, entire; Wilcock and Neiland 2002, species now or for the foreseeable concern due to the steepness of the p. 275). Lower genetic diversity may, in future. terrain on which the plant is located turn, lead to even smaller populations (2) Climate Change and Drought and the time of year grazing occurs in by decreasing the species’ ability to A. hamiltonii habitat (see Factor A, adapt, thereby increasing the probability Climate change is likely to affect the Livestock Grazing). Based on the best of population extinction (Barrett and long-term survival and distribution of available information, we do not believe Kohn 1991, pp. 4, 28; Newman and native species, such as Astragalus A. hamiltonii is threatened by disease or Pilson 1997, p. 360). hamiltonii, through changes in predation now or for the foreseeable We do not believe small population temperature and precipitation. Hot future. size is a concern for Astragalus extremes, heat waves, and heavy hamiltonii. A. hamiltonii grows robustly precipitation will increase in frequency, Factor D. The Inadequacy of Existing and in high densities with many flowers with the Southwest experiencing the Regulatory Mechanisms and fruits (Goodrich 2010b, entire; greatest temperature increase in the There are no laws protecting plants on Goodrich 2010c, p. 26). Although the continental United States (Karl et al. private, State, or Tribal lands in Utah. species exists in a relatively small area 2009, pp. 28, 129). Approximately 20 to A third of Astragalus hamiltonii (known distribution is 200 square miles 30 percent of plant and animal species individuals are found on BLM land. A. (mi2) (518 square kilometers (km2)), it are at increased risk of extinction if hamiltonii is listed as a bureau sensitive occurs across its range in a scattered— increases in global average temperature plant for the BLM. Limited policy-level and potentially continuous— exceed 2.7 to 4.5 degrees Fahrenheit (°F) protection by the BLM is afforded distribution. There are also large areas (1.5 to 2.5 degrees Celsius (°C)) through the Special Status Species of suitable habitat that remain (Intergovernmental Panel on Climate Management Policy Manual # 6840 unsurveyed, so the species may be more Change (IPCC) 2007, p. 48). In the which forms the basis for special status widely distributed. southwestern United States, average species management on BLM lands Astragalus hamiltonii’s scattered temperatures increased approximately (BLM 2008e, entire). distribution may contribute to its overall 1.5 °F (0.8 °C) compared to a 1960 to Despite the lack of regulatory viability and potential resilience 1979 baseline (Karl et al. 2009, p. 129). mechanisms to protect Astragalus (Goodrich 2010b, p. 89). For example, By the end of this century, temperatures hamiltonii, we found that there are no small-scale stochastic events, such as are expected to warm a total of 4 to 10 threats to the species (Factors A, B, C, the erosion of a hillside during a flood °F (2 to 5 °C) in the Southwest (Karl et and E) that require regulatory event, would probably destroy only a al. 2009, p. 129). mechanisms to protect the species. small portion of the known individuals Annual mean precipitation levels are Therefore, we do not consider the of A. hamiltonii. It is possible that a expected to decrease in western North inadequacy of regulatory mechanisms a landscape-level event, such as a America and especially the threat to this species now or for the wildfire, could destroy most known A. southwestern States by mid century foreseeable future. hamiltonii individuals, but the (IPCC 2007, p. 8; Seager et al. 2007, p. sparseness of the vegetation and the lack 1181). Throughout Astragalus Factor E. Other Natural or Manmade of fine fuels in A. hamiltonii habitat hamiltonii’s range, precipitation is Factors Affecting Its Continued makes this event unlikely (Wright and predicted to increase 10 to 15 percent in Existence Bailey 1982, p. 1; Olmstead 2010, pers. the winter, decrease 5 to 15 percent in Natural and manmade factors comm.). The lack of other surface- spring and summer, and remain affecting Astragalus hamiltonii include: disturbing threats (see Factor A) also unchanged in the fall under the highest (1) Small population size and (2) leads us to believe that the species’ emissions scenario (Karl et al. 2009, p. climate change and drought. current distribution and population size 29). The levels of aridity of recent will remain intact. drought conditions and perhaps those of (1) Small Population Size In the absence of information the 1950s drought years will become the We lack information on the identifying threats to the species and new climatology for the southwestern population genetics of Astragalus linking those threats to the rarity of the United States (Seager et al. 2007, p. hamiltonii, and as a probable outcrosser, species, we do not consider rarity alone 1181). Much of the Southwest remains this species could potentially be subject to be a threat. A species that has always in a 10-year drought, ‘‘the most severe to the negative effects of small been rare, yet continues to survive, western drought of the last 110 years’’ population size. As previously could be well equipped to continue to (Karl et al. 2009, p. 130). Although described (see Life History, above), exist into the future. This may be droughts occur more frequently in areas plants that are obligate outcrossers particularly true for Astragalus with minimal precipitation, even a cannot fertilize themselves and rely on hamiltonii, which is adapted to slight reduction from normal other individual plants of differing recolonize disturbed sites. Many precipitation may lead to severe genetic make-up to reproduce (Stebbins, naturally rare species have persisted for reductions in plant production. 1970, p. 310). Therefore, the fewer long periods within small geographic Therefore, the smallest change in plants that are located at a site (i.e., areas, and many naturally rare species environmental factors, especially small population size), the less chance exhibit traits that allow them to persist, precipitation, plays a decisive role in exists for sufficient cross-fertilization. despite their small population sizes. plant survival in arid regions (Herbel et Small populations and species with Consequently, the fact that a species is al. 1972, p. 1084). limited distributions are vulnerable to rare does not necessarily indicate that it Atmospheric levels of carbon dioxide relatively minor environmental may be in danger of extinction in the are expected to double before the end of disturbances (Given 1994, pp. 66–67). foreseeable future. the 21st century, which may increase Small populations also are at an Based on Astragalus hamiltonii’s the dominance of invasive grasses increased risk of extinction due to the apparently robust reproductive effort, leading to increased fire frequency and potential for inbreeding depression, loss scattered distribution, and lack of other severity across western North America of genetic diversity, and lower sexual threats, we believe that small (Brooks and Pyke 2002, p. 3; IPCC 2002, reproduction rates (Ellstrand and Elam population size is not a threat to this p. 32; Walther et al. 2002, p. 391).

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Elevated levels of carbon dioxide lead to populations are likely an evolutionary information pertaining to the five increased invasive annual plant adaptation of this species. Climate factors, we find that the factors analyzed biomass, invasive seed production, and change and resulting drought may affect above are not of sufficient imminence, pest outbreaks (Smith et al. 2000, pp. A. hamiltonii’s growth and reproductive intensity, or magnitude to indicate that 80–81; IPCC 2002, pp. 18, 32; Ziska et success. However, A. hamiltonii is Astragalus hamiltonii is in danger of al. 2005, p. 1328) and will put adapted to a landscape where drought extinction (endangered), or likely to additional stressors on rare plants naturally occurs and is able to rapidly become endangered within the already suffering from the effects of colonize after disturbance. In addition, foreseeable future (threatened), elevated temperatures and drought. as described in Factor A, there are no throughout its range. Therefore, we find No population trend data are available threats to the species that would result that listing A. hamiltonii as a threatened for Astragalus hamiltonii, but drought in significant loss or fragmentation of or endangered species throughout its conditions led to a noticeable decline in available habitat, and thus there are no range is not warranted. survival, vigor, and reproductive output cumulative effects to exacerbate the Significant Portion of the Range of other rare plants in the Southwest threat of climate change. We currently during the drought years of 2001 lack sufficient information that other Having determined that Astragalus through 2004 (Anderton 2002, p. 1; Van natural or manmade factors rise to the hamiltonii does not meet the definition Buren and Harper 2002, p. 3; Van Buren level of a threat to A. hamiltonii now or of a threatened or endangered species, and Harper 2004, entire; Hughes 2005, for the foreseeable future. we must next consider whether there entire; Clark and Clark 2007, p. 6; Roth are any significant portions of the range 2008a, entire; Roth 2008b, pp. 3–4). Finding where A. hamiltonii is in danger of As discussed in the Life History As required by the ESA, we extinction or is likely to become section above, Astragalus hamiltonii conducted a review of the status of the endangered in the foreseeable future. seedling establishment is probably species and considered the five factors In determining whether a species is correlated with rainfall (Heil and in assessing whether Astragalus threatened or endangered in a Melton 1995a, p. 14); therefore, reduced hamiltonii is endangered or threatened significant portion of its range, we first precipitation may reduce seedling throughout all or a significant portion of identify any portions of the range of the establishment. Additionally, the its range. We examined the best species that warrant further relatively localized distribution of A. scientific and commercial information consideration. The range of a species hamiltonii may make this species more available regarding the past, present, can theoretically be divided into susceptible to landscape-level stochastic and future threats faced by A. portions an infinite number of ways. extinction events, such as regional hamiltonii. We reviewed the petition, However, there is no purpose to drought. Despite these potential information available in our files, and analyzing portions of the range that are vulnerabilities, A. hamiltonii appears other available published and not reasonably likely to be significant well-adapted to a dry climate and can unpublished information, and we and threatened or endangered. To quickly colonize after disturbance. consulted with recognized A. hamiltonii identify only those portions that warrant Plants growing in high-stress landscapes experts and other Federal, State, and further consideration, we determine are adapted to stress, and drought- Tribal agencies. whether there is substantial information adapted species may experience lower The primary factor potentially indicating that: (1) The portions may be mortality during severe droughts (Gitlin impacting Astragalus hamiltonii is significant, and (2) the species may be et al. 2006, pp. 1477, 1484). future energy development (oil, gas, and in danger of extinction there or likely to In summary, climate change is tar sands). However, energy become so within the foreseeable future. affecting and will affect temperature and development is not likely to occur on a In practice, a key part of this analysis is precipitation events in the future. We broad scale throughout this species’ whether the threats are geographically expect that Astragalus hamiltonii, like range in the foreseeable future. concentrated in some way. If the threats other narrow endemics, may be Furthermore, the best available to the species are essentially uniform negatively affected by climate change information shows that A. hamiltonii throughout its range, no portion is likely related drought. However, we believe can tolerate some habitat disturbances. to warrant further consideration. that A. hamiltonii’s adaptation to Other factors affecting A. hamiltonii— Moreover, if any concentration of growing in high-stress environments including land conversion to threats applies only to portions of the renders this species less susceptible to agricultural use, grazing, recreation, species’ range that are not significant, negative effects from climate change. nonnative invasive species, and small such portions will not warrant further Although we believe climate change population size—are either limited in consideration. will impact plants in the future, the scope, or we do not have evidence that If we identify portions that warrant available information is too speculative supports these factors adversely further consideration, we then to determine the likelihood of this impacting the species as a whole. We determine whether the species is potential threat to A. hamiltonii. have no evidence that overutilization, threatened or endangered in these Therefore, based on the best scientific disease, and predation are affecting this portions of its range. Depending on the and commercial information available, species. Although climate change will biology of the species, its range, and the we conclude that climate change is not likely impact plants in the future, we do threats it faces, the Service may address a threat to A. hamiltonii now or for the not have enough information to either the significance question or the foreseeable future. determine that climate change will elicit status question first. Thus, if the Service a species-level response from A. considers significance first and Summary of Factor E hamiltonii. Finally, because none of determines that a portion of the range is We assessed the potential risks of these factors rises to the level of a threat, not significant, the Service need not small population size, climate change, the inadequacy of regulatory determine whether the species is and drought to Astragalus hamiltonii. mechanisms does not negatively affect threatened or endangered there. There is no evidence that the species’ A. hamiltonii. Likewise, if the Service considers status small population size is a threat to A. Based on our review of the best first and determines that the species is hamiltonii. Rather, small, scattered available scientific and commercial not threatened or endangered in a

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portion of its range, the Service need not hamiltonii and encourage its Distribution and Population Status determine if that portion is significant. conservation. If an emergency situation However, if the Service determines that develops for A. hamiltonii, or any other Penstemon flowersii is found only in both a portion of the range of a species species, we will act to provide the Uinta Basin near Roosevelt, Utah. Its is significant and the species is immediate protection. distribution straddles the Duchesne- threatened or endangered there, the Uintah County line (Figure 2). The Species Information—Penstemon Service will specify that portion of the species occurs across an area flowersii range as threatened or endangered approximately 20 mi (32 km) by 4 mi under section 4(c)(1) of the ESA. Taxonomy and Species Description (6.4 km) from Bridgeview to Randlett, We have no evidence that any Utah, in seven element occurrences particular population or portion of the Penstemon flowersii is an herbaceous (UNHP 2010b, entire) (see Distribution range of Astragalus hamiltonii is critical plant in the figwort family and Population Status section for to the species’ survival. Although (Scrophulariaceae) (Welsh et al. 2003, Astragalus hamiltonii above for a population area 2 appears to have a p. 624). This perennial plant can grow complete definition of element majority of the known Astragalus up to 14 in (36 cm) tall, with many occurrence). These seven element hamiltonii individuals, this area has branches that bloom dusty pink in May occurrences are not numbered received a majority of the search effort. and June (Heil and Melton 1995b, pp. 6– consecutively because the UNHP A. hamiltonii may actually occur 7). It has dry, multi-part fruits less than combined previously disjunct element continuously across its known range, 0.4 in (1 cm) long that split open when occurrences based on available but range-wide surveys have not been mature to release seeds (Neese and information. As with A. hamiltonii, the done. The population areas delineated Welsh 1983, p. 429). P. flowersii has a element occurrences are recorded to the in this document were derived from poorly developed or absent basal rosette nearest quarter-quarter of the township, existing data and information; however, (a dense radiating cluster of leaves at the range, and section. This method of information on the species’ distribution base of the plant) and smooth, thick recording species locations gives the and numbers may change with more leaves (Heil and Melton 1995b, pp. 6– impression that element occurrences survey effort. Additionally, potential 7). either overlap or join to form a threats to the species are essentially Penstemon flowersii was first continuous population. However, uniform throughout its range. Therefore, described in 1983 by Neese and Welsh, comprehensive surveys have not been we do not find that A. hamiltonii is in and is an accepted taxonomic entity done for all suitable habitats within an danger of extinction now, nor is it likely (Welsh et al. 2003, p. 624). P. flowersii element occurrence, so we do not know to become endangered within the resembles other species in the genus if the population is continuous foreseeable future throughout all or a and is closest vegetatively to P. carnosus throughout the species’ range. significant portion of its range. (Heil and Melton 1995b, p. 8), but P. Penstemon flowersii was recently Therefore, listing A. hamiltonii as flowersii is distinguished by its smaller identified north of element occurrence 9 threatened or endangered under the stature and dusty pink flowers (Neese (Spencer 2010a, entire). We refer to this ESA is not warranted at this time. and Welsh 1983, pp. 429–431). P. location as the ‘‘new site’’ because it is We request that you submit any new flowersii is closely related to P. not yet assigned to an element information concerning the status of, or immanifestus, a species that grows occurrence. At this time, we are unsure threats to, Astragalus hamiltonii to our elsewhere in Nevada and Utah but has as to whether or not this new site will Utah Ecological Services Field Office a more prominently bearded staminode be designated as a new element (see ADDRESSES section) whenever such (sterile male reproductive part found in occurrence or if it will be included in information becomes available. New the flower) (Heil and Melton 1995b, p. an existing element occurrence. information will help us monitor A. 8). BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C has changed over time because occurrence 19, which is on property Penstemon flowersii’s distribution is comprehensive surveys were not managed by the Utah Reclamation patchy, although some sites can have conducted for this species. Mitigation and Conservation moderately dense distribution with up Commission for the U.S. Bureau of to 10 plants in 1 yd2 (1 m2) (Heil and Penstemon flowersii is found almost Reclamation (BOR) (UNHP 2010b, Melton 1995b, pp. 12–14). We do not completely on private and Tribal lands know if the distribution of P. flowersii (Table 2), with the exception of element entire).

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TABLE 2—ESTIMATED NUMBER OF PENSTEMON FLOWERSII PLANTS

Percent land ownership Year of Element Number of penstemon flowersii plants last occurrence Private Tribal BOR survey

1 ...... 75 25 0 2,000–13,000...... 2001 5 ...... 94 6 0 101–1,000...... 1995 6 ...... 78 22 0 No count...... 1982 8 ...... 71 29 0 61–71...... 2004 9 ...... 91 9 0 51–100...... 2001 16 ...... 100 0 0 4...... 2001 19 ...... 44 21 35 552...... 2001 New site ...... 100 0 0 29 ...... 2010 Total ...... 79 19 2 2,798–14,756.

The total number of Penstemon include species of the order agricultural use by 1970 (NAIP 2009, p. flowersii individuals in Table 2 was Hymenoptera: Anthophora affabilis, A. 2; Hilton 2010, p.1). Major changes in derived from actual counts or estimates bomboides, and a species in the genus the amount of agricultural land in these provided for each element occurrence. Osmia (Tepedino 2007, pers. comm. in counties are not expected in the future However, these counts do not include Frates 2010, p. 32). (Hilton 2010, p. 2). Therefore, we would all known locations (e.g., private lands not expect future agricultural or BOR lands) for the species. The total Summary of Information Pertaining to conversion in these areas at a level that Penstemon number of P. flowersii individuals was the Five Factors— would threaten the species as a whole. flowersii previously estimated from 15,000 to The upper benches on private land 20,000 on private lands alone, not In making our 12-month finding on where Penstemon flowersii now grows including Tribal land (Heil and Melton the petition, we considered and appear as nonirrigated terrain in digital 1995b, p. 13; Franklin 2005, p. 131). We evaluated the best available scientific imagery (NAIP 2009, p. 2), and thus do not know how this estimate was and commercial information pertaining these areas are not likely used for derived. to Penstemon flowersii in relation to the agriculture. It is possible that most of We cannot make a more accurate five factors provided in section 4(a)(1) of these nonirrigated lands are used for estimate for the total number of the ESA (see the full description of rangeland grazing. Heavy grazing was Penstemon flowersii because many sites these five factors in the Summary of noted at one site (UNHP 2010b, entire), on private and Tribal lands are Information Pertaining to the Five and, as previously described, livestock inaccessible, and P. flowersii population Factors section for Astragalus can graze and trample plants (BLM numbers fluctuate widely from year to hamiltonii above). 2008c, p. 485). However, anecdotal year (Heil and Melton 1995b, p. 16; observations indicate that this plant is Factor A. The Present or Threatened Prevedel 2001 pers. comm. in Franklin not a preferred browse species by Destruction, Modification, or 2005, p. 131). Therefore, we do not have grazing livestock (Holmgren 2009 pers. Curtailment of Its Habitat or Range accurate population counts or trend comm. in Frates 2010, p. 35), and the information for this species. The following factors may affect the species can tolerate some level of soil habitat or range of Penstemon flowersii: disturbances (see Habitat). P. flowersii Habitat (1) Conversion to agricultural use/ was noted as thriving in pastures Penstemon flowersii is a narrow livestock grazing, (2) recreational (Holmgren 2009 pers. comm. in Frates endemic that grows in Atriplex activities, (3) oil and gas exploration 2010, p. 35), so it appears that livestock confertifolia (shadscale) communities and development, (4) nonnative grazing does not negatively impact the on semibarren, gravelly clay slopes of invasive species, and (5) rural species. In summary, we have no the Uinta Formation (Heil and Melton residential development. information suggesting that conversion 1995b, p. 9) at elevations ranging from of habitat to agricultural use or livestock (1) Conversion to Agricultural Use/ 4,890 to 5,410 ft (1,490 to 1,650 m) grazing are threats to P. flowersii now or (NatureServe 2009b, p. 2). It is found on Livestock Grazing for the foreseeable future. both disturbed and undisturbed sites For Penstemon flowersii, we (2) Recreational Activities (Heil and Melton 1995b, p. 10). combined two factors, conversion to agricultural use and livestock grazing, Recreational activities (e.g., mountain Life History into one discussion because both of bikes and motorized bikes) and OHV We know little of Penstemon these factors occur on private lands. use can impact Penstemon flowersii and flowersii’s life history. Plant growth, Historically, conversion of natural lands its habitat. The OHV use was seedling establishment, and juvenile to agricultural use likely impacted documented within three element mortality for this species are probably Penstemon flowersii populations (Heil occurrences of P. flowersii to varying correlated with rainfall (Heil and and Melton 1995b, pp. 8, 16), resulting degrees (UNHP 2010b, entire). Two of Melton 1995b, p. 14). Reproduction and in lower population numbers and these sites were listed in marginal recruitment were noted at multiple sites habitat fragmentation. We believe the condition, although plant vigor and across all element occurrences (UNHP species was historically distributed in reproduction at these sites was good 2010b, entire; Brunson 2010b, p. 1). One the low-lying areas because those areas (UNHP 2010b, entire). Disturbance site had an estimated age structure of 4 that were not converted to agricultural occurred at a third site in 1995, and a percent seedlings and 96 percent mature use still contain P. flowersii plants population decline for this site was adults, indicating that recruitment is (Franklin 2005, p. 131). attributed to OHV activity (Heil and occurring (UNHP 2010b, entire). Most of the suitable land in Duchesne Melton 1995b, p. 17). However, vigorous Pollinators observed visiting P. flowersii and Uintah Counties was converted to plants were observed at this site with

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ample flower production (UNHP 2010b, P. flowersii. Thus, oil and gas related business and industrial entire; Brunson 2010b, p. 1). The OHV exploration and development is not a development. use was not documented for the five threat to P. flowersii now or in the Duchesne and Uintah Counties, where remaining element occurrences or in the foreseeable future. Penstemon flowersii is found, had the new P. flowersii site, but this does not highest (3.6 percent) and fourth highest (4) Nonnative Invasive Species necessarily mean OHV use does not (1.8 percent) population growth rates in occur there. Additionally, no other We have limited information Utah from 2008 to 2009, respectively recreational uses were documented at P. regarding the distribution of nonnative (Utah Population Estimates Committee flowersii sites. invasive species in Penstemon flowersii 2009, p. 2). The average population In summary, OHV use may be habitat. We know that invasive species, increase across the state of Utah was 1.5 negatively affecting individual plants at particularly Bromus tectorum, occur percent over the same timeframe (Utah some sites, but this impact is localized within P. flowersii habitat (Frates 2010, Population Estimates Committee 2009, and not rangewide. We identified OHV pp. 29–30). However, we do not have p. 4). Roosevelt is the largest use in the species’ habitat, but the any information indicating that B. municipality that occurs near known P. plants are vigorous and retaining their tectorum or other nonnative invasive flowersii habitat, and two smaller ability to reproduce. Therefore, we species impact P. flowersii. municipalities, Ballard and Myton, are believe that recreational activities are Soil disturbances can increase nearby. The U.S. Census Bureau not threats to Penstemon flowersii now invasive species (see Astragalus estimates that the population of or for the foreseeable future. hamiltonii, Factor A, Nonnative Roosevelt increased approximately Invasive Species) (Evans et al. 2001, p. 12 percent from 2000 to 2009, with (3) Oil and Gas Exploration and 1308). As noted above, B. tectorum, a Ballard and Myton increasing 34 and 17 Development major invasive plant species in the percent, respectively (U.S. Census Oil and gas exploration and West, invades areas in response to Bureau 2010a, entire). Human development can impact Penstemon surface disturbances (Hobbs 1989, pp. population growth can destroy and flowersii plants and their habitat (BLM 389, 393, 395, 398; Rejmanek 1989, pp. fragment habitat as municipalities grow 2008c, pp. 448–449). Within all mapped 381–383; Hobbs and Huenneke 1992, and incorporate more of what was once element occurrences of P. flowersii, pp. 324–325, 329, 330; Evans et al. natural land. there are four plugged and abandoned 2001, p. 1308). Therefore, we assessed Over the next 50 years, Duchesne and wells. All existing wells were plugged the potential for soil disturbances to Uintah Counties are projected to grow at prior to 1999. As mentioned previously, increase nonnative invasive species in a slower rate of 1.1 percent (Utah plugged and abandoned wells involve the foreseeable future in Penstemon Governor’s Office of Planning and surface disturbance for roads and well flowersii habitat. Budget (Utah GOPB) 2008, entire). At pads when they are constructed and Agricultural use, livestock grazing, this growth rate, Daggett, Duchesne, and during operation, but when they are and oil and gas exploration and Uintah Counties (which are grouped abandoned they are reclaimed and do development are the predominant together by the Utah Population not receive regular traffic or disturbance activities that disturb soils across the Estimates Committee) are expected to (see Astragalus hamiltonii, Factor A, Oil range of Penstemon flowersii. We increase from a current total population and Gas Exploration and Development). determined that these activities are not of 49,707 to 80,319 by 2060 (Utah GOPB There are two new proposed well extensive enough to threaten P. flowersii 2008, entire). The City of Roosevelt locations within the species’ mapped now or in the foreseeable future (see projects a population of 6,600 by 2030, element occurrences—one well location Agricultural Use/Livestock Grazing and but they anticipate the population could that has an approved permit to drill and Oil and Gas Exploration and be higher (City of Roosevelt 2010, p. 7). one well location that is not yet Development). Thus, we also do not Much of the urban and rural approved. Approved permits allow for expect that these activities will increase development in the Uinta Basin is well drilling, which will have surface disturbance to the point where influenced by the boom and bust cycles associated negative impacts to invasive species will become of energy development, and another vegetation, and potentially P. flowersii, established and impact P. flowersii to a boom cycle could increase population during construction and drilling significant degree. At this time, we have growth over predictions. operations. These impacts have no information suggesting that Although municipalities are growing historically been localized and small in nonnative invasive species are a threat and are projected to increase near scale. We expect these impacts to to P. flowersii now or for the foreseeable Penstemon flowersii habitat, they are continue to be minimal, considering future. not likely to impact a substantial that oil and gas development has amount of the known habitat of this occurred only minimally in P. flowersii (5) Rural Residential Development species. The southern edge of habitat. Conversion of land for rural Roosevelt’s municipal boundary is The lack of oil and gas development residential development can result in approximately 0.2 mi (0.3 km) north of in Penstemon flowersii habitat is most the permanent loss and fragmentation of the northern boundary of element likely because there is not enough habitat for many species, including occurrence 1 (see Figure 2). The city product to be economically feasible Penstemon flowersii. Impacts include, limits of Ballard and Myton are with current technology (Doyle 2010, but are not limited to, crushed immediately adjacent to element pers. comm.; Sparger 2010, pers. comm.) vegetation, compacted soils, introduced occurrences 1 and 9, with Ballard city rendering dense energy developments exotic plant species, reduced available limits overlapping element occurrence unlikely in this area (BLM 2008c, p. habitat, and increased habitat 6. None of these municipalities overlap 486). Although oil and gas development fragmentation (Hansen et al. 2005, with known sites of P. flowersii. could potentially expand throughout P. entire). For the purpose of this analysis, Roosevelt will likely expand into an flowersii habitat, substantial we define rural residential development area already defined as an annexation development is not likely for the next 20 as the expansion of rural towns and area (City of Roosevelt 2010, p. 42), and years (BLM 2008c, p. 486), nor is it surrounding rural areas through low- this area is approximately 2 mi (3.2 km) likely to occur across the entire range of density housing construction and north of element occurrence 9 and the

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new site of P. flowersii on private land. geographically near P. flowersii, is used make P. flowersii more vulnerable to the Roosevelt and Ballard city limits are horticulturally (Frates 2010, p. 75). impacts of small population size, constrained by geography and Tribal However, P. flowersii is more obscure, limiting its ability to survive periods of boundaries, and neither are likely to and we have no evidence that this low growth or recruitment. expand substantially southward toward species is sought out for horticultural The species’ biology, distribution, and known P. flowersii sites (Eschler 2010, purposes (Frates 2010, p. 75). Therefore, even our information gaps indicate that pers. comm.; Hyde 2010, pers. comm.). we do not consider overutilization a small population sizes may not In summary, rural residential threat to P. flowersii now or in the significantly impact Penstemon development is occurring now and is foreseeable future. flowersii. For example, P. flowersii likely to increase in the future, but most Factor C. Disease or Predation grows vigorously and in moderate of this development would occur densities with evidence of good outside of Penstemon flowersii known Disease and herbivory by insects, reproduction and recruitment (UNHP sites. Therefore, we do not believe rural wildlife, or livestock was documented 2010b, entire; Brunson 2010b, p. 1). residential development is a significant for Penstemon flowersii on only one Although we still consider P. flowersii a threat to the species now or in the occasion: Caterpillars were feeding on P. narrow endemic, it occurs across a foreseeable future. flowersii plants near Midview Reservoir relatively large range. In addition, there (Spencer 2010b, pers. comm.). We do Summary of Factor A are relatively large amounts of not know how widespread this unsurveyed potential habitat between Based on the best available herbivory was or if it had detrimental known sites that could result in an information, we do not believe that effects on P. flowersii; caterpillars expanded species distribution and conversion to agricultural use/livestock naturally feed on many plant species. range. grazing, recreational activities, The UNHP data did not note disease or Finally, we have not identified other nonnative invasive species, oil and gas herbivory for the species (UNHP 2010b, exploration and development, or rural surface-disturbing threats to this species entire). With no data indicating that would cumulatively increase the residential development threaten otherwise, we do not consider disease or Penstemon flowersii now or in the risk of small population size. As predation to be a threat to P. flowersii previously discussed under Factor E for foreseeable future. Conversion to now or in the foreseeable future. agricultural use most likely had an Astragalus hamiltonii (above), with no appreciable negative impact on P. Factor D. The Inadequacy of Existing threats linked to a species’ rarity, we do flowersii historically, but we have no Regulatory Mechanisms not consider rarity alone to be a threat. evidence that conversion to agricultural There are no Federal or State laws A species that has always been rare, yet use continues today at a level that that protect Penstemon flowersii. P. continues to survive, could be well threatens the species. Likewise, flowersii is found mostly on non- equipped to continue to exist into the livestock grazing is not widely noted Federal lands, where no known future. Many naturally rare species have across P. flowersii sites, and where it regulatory mechanisms exist. However, persisted for long periods within small occurs it does not appear to negatively we found that there are no threats to the geographic areas, and many naturally impact individuals. The OHV use, the species that warrant additional rare species exhibit traits that allow only documented recreational activity regulatory mechanisms (see Factors A, them to persist despite their small in P. flowersii’s habitat, is localized, and B, C, and E). Therefore, we do not population sizes. Consequently, the fact we do not have evidence that P. consider the inadequacy of existing that a species is rare does not flowersii is considerably compromised regulatory mechanisms as a threat to necessarily indicate that it may be in or threatened by OHV use. We do not this species now or in the foreseeable danger of extinction in the foreseeable have information to support that future. future. Thus, we believe that small nonnative invasive species are currently population size is not a threat to P. threatening P. flowersii or will be likely Factor E. Other Natural or Manmade flowersii. Factors Affecting Its Continued to do so in the foreseeable future. It is (2) Climate Change and Drought unlikely that current technologies and Existence economic conditions will support Natural and manmade threats to Potential impacts of climate change substantial oil and gas development Penstemon flowersii’s survival include: and drought to the geographic area are across P. flowersii habitat in the (1) Small population size and (2) characterized in the Climate Change and foreseeable future. Finally, rural climate change and drought. Drought section under Factor E for residential development is unlikely to Astragalus hamiltonii (above). (1) Small Population Size expand substantially into P. flowersii Penstemon flowersii occurs within the habitat. We find that the present or Penstemon flowersii grows across an same geographic vicinity as A. threatened destruction, modification, or area of 80 mi2 (207 km2). P. flowersii hamiltonii and, therefore, will be curtailment of its habitat or range is not individuals occur in well-defined exposed to similar changes in climate a threat to P. flowersii now or for the populations that are geographically and drought. foreseeable future. isolated from one another. Thus, this No trend data are available for species may be prone to the negative Penstemon flowersii that would Factor B. Overutilization for effects of small population size, in part elucidate the relationship between the Commercial, Recreational, Scientific, or because historical fragmentation of species’ stability and climate variables. Educational Purposes habitat (e.g., agricultural use) may have We do not know what causes We are not aware of threats from resulted in small populations with fluctuations in P. flowersii abundance, overutilization or collection of limited gene flow. P. flowersii also but if it is due to environmental factors Penstemon flowersii for commercial, appears to have episodic growth like precipitation or temperature, recreational, scientific, or educational patterns with large fluctuations in climate change could negatively affect purposes, nor do we expect numbers from year to year (Franklin this species. However, because of the overutilization in the foreseeable future. 2005, p. 131; 2010, p. 79). This lack of available data, any predictions P. duchesnensis, which is fluctuation and patchy distribution may are speculative.

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We expect that Penstemon flowersii, lands (Holmgren 2009 pers. comm. in distribution is incomplete and like other narrow endemics, may be Frates 2010, p. 35; Brunson 2010b, p. 1), population counts fluctuate widely, we negatively affected by climate change and we have little evidence that cannot determine that any one element and drought. However, despite climate conversion to agricultural use is an occurrence is more critical to the changes that have occurred over the past ongoing threat to this species. Livestock species’ survival (i.e., has a significant 30 years, we have no evidence that P. do not appear to forage on P. flowersii, portion of individuals) than another. flowersii populations are declining, and and the species occurs in grazing Additionally, potential threats to the we have no basis to predict how this pastures. Rural residential development species appear to be uniform throughout species will respond in the future to is another factor that could potentially P. flowersii’s range. Therefore, we do climate change. Over the past 30 years, destroy and fragment this species and not find that P. flowersii is in danger of plant health remains normal to its habitat in the future, but it is extinction now, nor is it likely to vigorous, and reproduction and unlikely to occur at a high level across become endangered within the recruitment continue to occur at some P. P. flowersii’s known range. Other factors foreseeable future throughout all or a flowersii element occurrences (UNHP affecting P. flowersii—including significant portion of its range. 2010b, entire). We have not identified recreational activities, nonnative Therefore, listing P. flowersii as other threats to this species, such as invasive species, oil and gas threatened or endangered under the mining, that would cumulatively development, and small population ESA is not warranted at this time. exacerbate the threat of climate change. size—are either limited in scope, or we We request that you submit any new Based upon the best available do not have evidence that supports information concerning the status of, or information, we do not believe that these factors adversely impacting the threats to, Penstemon flowersii to our climate change is a threat now or is species as a whole. We have no Utah Ecological Services Field Office likely to become one in the foreseeable evidence that overutilization, disease, (see ADDRESSES section) whenever such future. and predation are affecting this species. information becomes available. New Although climate change will likely information will help us monitor P. Summary of Factor E impact the species, we do not have any flowersii and encourage its We assessed the potential risks of information that indicates it threatens conservation. If an emergency situation small population size, climate change, the continued existence of P. flowersii. develops for P. flowersii, or any other and drought to Penstemon flowersii. Finally, because none of these factors species, we will act to provide There is no evidence that the species’ rises to the level of a threat that would immediate protection. small population size is a threat to P. warrant additional regulatory Species Information—Eriogonum flowersii. The species is adapted to a mechanisms, the inadequacy of landscape where drought naturally regulatory mechanisms does not soredium and Lepidium ostleri occurs, and we have no information negatively affect P. flowersii. Eriogonum soredium and Lepidium indicating that the species is threatened Based on our review of the best ostleri occur in the same habitat and by climate change. In addition, as available scientific and commercial have the same distribution. Therefore, described in Factor A, there are no information pertaining to the five we discuss these species together for threats to the species that would result factors, we find that the factors analyzed purposes of this finding. in significant loss or fragmentation of above are not of sufficient imminence, Taxonomy and Species Description available habitat, and thus there are no intensity, or magnitude to indicate that cumulative effects to exacerbate the Penstemon flowersii is in danger of Eriogonum soredium threat of climate change or small extinction (endangered), or likely to Eriogonum soredium is a low mound- population sizes. Therefore, based on become endangered within the forming perennial plant in the the best scientific and commercial foreseeable future (threatened) buckwheat family (Polygonaceae) that is information available at this time, we throughout all or a significant portion of 0.8 to 1.6 in (2 to 4 cm) tall and 3.9 to conclude that natural or manmade its range. Therefore, we find that listing 19.7 in (10 to 50 cm) across (Welsh et factors are not threats to P. flowersii now P. flowersii as threatened or endangered al. 2008, p. 588). The leaves are 0.08 to or for the foreseeable future. species is not warranted throughout its 0.2 in (2 to 5 mm) long, 0.03 to 0.08 in range. (0.7 to 2 mm) wide, round to oval, and Finding covered on both surfaces by short, As required by the ESA, we Significant Portion of the Range white, wooly hairs (Welsh et al. 2008, p. conducted a review of the status of the Having determined that Penstemon 588). The numerous flowers are species and considered the five factors flowersii does not meet the definition of arranged in tight clusters resembling in assessing whether Penstemon threatened or endangered species, we drumsticks. Individual flowers are flowersii is endangered or threatened must next consider whether there are white or partially pink and 0.08 to 0.12 throughout all or a significant portion of any significant portions of the range in (2 to 3 mm) long (Welsh et al. 2008, its range. We examined the best where P. flowersii is in danger of p. 588). Flowering generally occurs from scientific and commercial information extinction or are likely to become June to August. The seeds, which are available regarding the past, present, endangered in the foreseeable future. 0.08 to 0.10 in (2 to 2.5 mm) long, and future threats faced by P. flowersii. See the Significant Portion of the Range mature from July through September We reviewed the petition, information section under Astragalus hamiltonii (Welsh et al. 2008, p. 588). available in our files, other available (above) for a summary of our Eriogonum soredium was first published and unpublished interpretation of the meaning of ‘‘in described in 1981 by James Reveal information, and we consulted with danger of extinction throughout all or a based on a collection by Stan Welsh and recognized P. flowersii experts and other significant portion of its range.’’ Matt Chatterly (Reveal 1981, entire; Kass Federal, State, and Tribal agencies. We have no evidence that any 1992a, p. 1). E. soredium has not The factor with potentially the most particular population or portion of the undergone any taxonomic revisions impact on Penstemon flowersii was range of Penstemon flowersii is critical since it was originally described. historical agricultural development. Site to the species’ survival. Because our Therefore, we accept the current visits show plants persist in pasture understanding of the species’ taxonomy as an indication that the

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species constitutes a listable entity L. ostleri has not undergone any Habitat section below) (Miller 2010g, p. under the ESA. taxonomic revisions since it was 6). Similarly, no additional populations originally described. We are accepting of either species were found during Lepidium ostleri the current taxonomy and consider L. surveys of the San Francisco Mountains Lepidium ostleri is a long-lived ostleri a listable entity under the ESA. and surrounding ranges (including the perennial herb in the mustard family Wah Wah Mountains, Crystal Peak, the Distribution and Population Status (Brassicaceae). It grows in dense Confusion Range, and the Mountain cushion-like tufts up to 2 in (5 cm) tall Eriogonum soredium and Lepidium Home Range) (Kass 1992a, p. 5; Kass (Welsh et al. 2008, p. 328). The grayish- ostleri are each known from four 1992b, p. 4; Evenden 1998, p. 5; green hairy leaves are 0.16 to 0.59 in (4 distinct, overlapping populations on Robinson 2004, p. 16; Miller 2010c, to 15 mm) long, generally linear, and private lands in the southern San entire; Roth 2010a, pp. 2–3). entire or with lobed basal leaves (Welsh Francisco Mountains in Beaver County, There were reports of two populations et al. 2008, p. 328). Flowering stalks are Utah—the Grampian Hill, Cupric Mine, of E. soredium in the Wah Wah approximately 0.39 in (1 cm) long with Copper Gulch, and Indian Queen Mountains; however, we do not believe 5 to 35 flowers that are white or have populations (Figure 3; Miller 2010g, p. these reports are accurate—one report a purple tint (Welsh et al. 2008, p. 328). 6; Roth 2010a, pp. 1–2). We are not appears to have incorrect location Flowering generally occurs from June to aware of any additional populations. information (Kass 1992a, p. 5; Franklin early July, followed by fruit set from Surveys were conducted on BLM lands 2005, p. 85) and the other report appears July to August (Welsh et al. 2008, p. adjacent to the known populations in to be a species misidentification 328). 2010, and no plants or habitat were (Robinson 2004, p. 16; Roth 2010a, p. 3). Lepidium ostleri was first described in found (Miller 2010g, Appendix B and p. Therefore, reports of these two 1980 by Stan Welsh and Sherel 6; Roth 2010a, pp. 1–3); these adjacent populations are thought to be erroneous Goodrich based on a collection by Stan areas do not contain Ordovician and are not discussed further in this Welsh and Matt Chatterly (Welsh and Limestone, the substrate that supports finding. Goodrich 1980, entire; Kass 1992b, p. 1). both E. soredium and L. ostleri (see BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C occupied habitat ranged from 170 acres we now have more accurate global Eriogonum soredium and Lepidium (ac) (69 hectares (ha)) (Evenden 1998, positioning system information that ostleri are distributed across a total Appendix C) to 400 ac (160 ha) (Kass shows the two species’ total occupied range of less than 5 mi 2 (13 km 2). 1992a, pp. 7–8; 1992b, p. 7). However, habitat is approximately 52 ac (21 ha) Previous estimates of the species’ total

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(based on Miller 2010g, Appendix B). We lack demographic information, approximate number of dead plants For both species, each of the four known which is measured by studying the size, (Miller 2010g, p. 4). populations are estimated to occupy distribution, composition, and changes No information is available on the life habitat ranging between 5 ac (2 ha) and within a specified population over time. history of Lepidium ostleri. 29 ac (12 ha), with localized high Habitat Summary of Information Pertaining to densities of plants (Evenden 1989, the Five Factors—Eriogonum Appendix C; Miller 2010g, Appendix B). Eriogonum soredium and Lepidium soredium Lepidium ostleri All known Eriogonum soredium and ostleri are narrow endemics restricted to and Lepidium ostleri populations are located soils derived from Ordovician limestone In making our 12-month finding on on private lands (Miller 2010g, p. 6; outcrops (Evenden 1998, p. 5). There are the petition, we considered and Roth 2010a, pp. 1–2). Their occurrence approximately 845 ac (342 ha) of evaluated the best available scientific on these private lands hinders our Ordovician limestone outcrops in the and commercial information pertaining ability to collect accurate long-term San Francisco Mountains (Miller 2010g, to Eriogonum soredium and Lepidium population count or trend information Appendix F). In addition, there are 719 ostleri in relation to the five factors because of access limitations. The ac (291 ha) of Cambrian dolomite provided in section 4(a)(1) of the ESA populations were visited sporadically substrates in the San Francisco (see the full description of these five over the last couple of decades; Mountains; there is the potential for factors in the Summary of Information however, we have no information on small ‘‘islands’’ of Ordovician limestone Pertaining to the Five Factors— sampling methods used by individual outcrops to occur within these Astragalus hamiltonii, above). E. surveyors. Common field techniques substrates (Miller 2010g, Appendix F, soredium and L. ostleri co-occur in the used to estimate population size tend to p. 7). same habitat and, therefore, are be highly subjective in the absence of Ordovician limestone is rare within a addressed together in the Five Factor actual population counts. Population 50-mi (80-km) radius of the San Analysis below. estimates also may be skewed by how Francisco Mountains (Miller 2010g, the species grow. Both species grow in Appendix F). Cambrian dolomite Factor A. The Present or Threatened low, mound-forming clusters, making it substrates are present in the Wah Wah Destruction, Modification, or difficult to distinguish individual Mountains to the west of the San Curtailment of Their Habitat or Range plants—some observers may assume Francisco Mountains (Miller 2010g, The following factors may affect the each cluster is one plant and other Appendix F). However, as previously habitat or range of Eriogonum soredium observers might apply a multiplier to described (see Distribution and and Lepidium ostleri: (1) Livestock each cluster to count them as multiple Population Status), there is no grazing, (2) recreational activities, (3) plants; therefore, using either of these indication that additional populations mining, and (4) nonnative invasive methods would greatly skew the of either species occur in these areas. species. resulting population estimate. We We do not know if there are other (1) Livestock Grazing believe these biases help explain the limiting factors associated with the seemingly large fluctuations in numbers limestone formations that restrict the Potential impacts of livestock grazing of plants observed during different habitat use and distribution of these to plants are discussed above in the surveys (see below); E. soredium and L. species—these species occupy only a Livestock Grazing section under Factor ostleri are robust, long-lived perennial fraction of the available habitat and are A for Astragalus hamiltonii. As plants that are unlikely to exhibit such known to occur on only 52 ac (21 ha), previously stated, all populations of extreme population fluctuations (Garcia or just 6 percent, of the available Eriogonum soredium and Lepidium et al. 2008, pp. 260–261). Ordovician limestone outcrops. ostleri occur on private lands. Accordingly, the available population Eriogonum soredium and Lepidium We have no information on livestock estimates are highly variable and ostleri are associated with pinion- grazing management on private lands, probably not accurate. For Eriogonum juniper and sagebrush communities but adjacent BLM lands belong to active soredium, available population between 6,200 and 7,228 ft (1,890 and grazing allotments (Galbraith 2010, pers. estimates range from a low of 10 to 100 2,203 m) in elevation. They are typically comm.). Adjacent private lands are plants in 2004 to a high of 76,000 to found on sparsely vegetated exposed subject to the same grazing practices as 81,000 individuals in 2010 (Kass 1992a, slopes with Ephedra sp. (Mormon tea), the allotted BLM land if they are not p. 8; Evenden 1998, Appendix C; Gutierrezia sarothrae (snakeweed), fenced (Galbraith 2010, pers. comm.). Robinson 2004, pp. 11–15; Miller 2010a, Cercocarpus intricatus (dwarf Private lands in the San Francisco pers. comm.; Miller 2010b, pers. comm.; mountain-mahogany), and Petradoria Mountains are only partially fenced; Miller 2010c, pp. 2–5; Roth 2010a, p. 4). pumila (rock goldenrod). Associated hence, livestock may have access to For Lepidium ostleri, available rare species include Trifolium areas where E. soredium and L. ostleri population estimates range from a total friscanum. occur. However, impacts to E. soredium of 700 individuals (Kass 1992b, p. 8) to or L. ostleri from livestock grazing have Life History approximately 17,000 individuals in the not been documented (Kass 1992a and 1990s (Evenden 1998, Appendix C). We do not have a clear understanding 1992b, entire; Evenden 1998, entire; Currently, the total number of L. ostleri of the reproductive biology or life Miller 2010g, p. 5; Roth 2010a, p. 1). plants is estimated at approximately history of Eriogonum soredium, but Based on our review of the available 43,000 (Miller 2010a, pers. comm.; recruitment appears to be low or information, there is no indication that Miller 2010c, pp. 2–5; Roth 2010a, p. 4). perhaps episodic (Kass 1992a, p. 7; Roth grazing impacts the species now or will However, due to the aforementioned 2010a, p. 1). Juvenile plants and impact the species in the foreseeable survey inaccuracies, we are not able to seedlings have been observed in only future at a level that threatens E. determine accurate population estimates two of the four populations (Miller soredium or L. ostleri. or trends for either species. In 2010, 2010g, p. 4). In 2010, dead or partially both species were documented at all dead plants were found throughout all (2) Recreational Activities four known populations (Miller 2010g, populations, but we have no Potential impacts of recreational entire). information on the cause of death or the activities to plants are discussed above

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in the Recreational Activities section soredium and L. ostleri by removing soredium and Lepidium ostleri (Table 3; under Factor A for Astragalus habitat substrate, increasing erosion Kass 1992a, p. 10; Evenden 1998, p. 3; hamiltonii. There are no known impacts potential, fragmenting habitat through Roth 2010a, p. 2). of OHV use in Eriogonum soredium and access road construction, degrading The eastern part of the Grampian Hill Lepidium ostleri occupied habitats suitable habitat, and increasing invasive population surrounds old mine shafts (Miller 2010f, pers. comm.; Roth 2010a, plant species (Brock and Green 2003, associated with the King David Mine, pp. 1–2). Access to the majority of the p. 15; BLM 2008c, pp. 448–449). Impacts which is part of the historical Horn occupied habitat, which occurs on to E. soredium and L. ostleri individuals Silver Mine. The Horn Silver Mine was private lands, is posted as closed to all include crushing and removing plants, one of the largest silver mines in the vehicles, including OHVs (Miller 2010g, reducing plant vigor, and reducing country until it collapsed in 1885 p. 5). The OHV use does not appear to reproductive potential through (Murphy 1996, p. 1; Evenden 1998, p. 3). impact adjacent BLM lands in the San increased dust deposits, reduced Francisco Mountains (Pontarolo 2009, seedbank quantity and quality, and The Cupric Mine population is located pers. comm.). Therefore, we have no decreased pollinator availability and immediately above a mine shaft information indicating that recreational habitat (Brock and Green 2003, p. 15; associated with the Cupric Mine, a activities threaten E. soredium and L. BLM 2008c, pp. 448–449). historical copper mine. Old mine shafts ostleri now nor do we anticipate these The San Francisco Mountains have an are located within 0.3 mi (0.5 km) of the activities will become a threat in the extensive history of precious metal Copper Gulch population; these mine foreseeable future. mining activity (Evenden 1998, p. 3). All shafts are associated with the Cactus four of the known populations and Mine, also a historical copper mine. (3) Mining much of the species’ potential habitat Two mine shafts are located within the Mining activities occurred historically were impacted by precious metal Indian Queen population and three throughout the range of Eriogonum mining activities in the past, as additional mine shafts are located soredium and Lepidium ostleri and evidenced by a high density of mine immediately adjacent to this population. continue to impact these species. shafts, tailings, and old mining roads These mine shafts also are part of the Mining activities can impact E. throughout the habitat of Eriogonum historical Cactus Mine.

TABLE 3—MINING ACTIVITIES IN THE HABITAT OF Eriogonum Soredium AND Lepidium Ostleri

Mining activity Population Historical Current Future

Grampian Hill ...... silver, lead, copper, zinc (Horn Silver Mine) ... None ...... silver, lead, copper, zinc, landscape gravel quarrying. Cupric Mine ...... silver, lead, copper, zinc, gravel quarrying gravel quarrying ...... silver, lead, copper, zinc, landscape gravel (Cupric Mine). quarrying. Copper Gulch ...... silver, lead, copper, zinc, gravel quarrying gravel quarrying ...... silver, lead, copper, zinc, landscape gravel (Cactus Mine). quarrying. Indian Queen ...... silver, lead, copper, zinc, gravel quarrying gravel quarrying ...... silver, lead, copper, landscape gravel quar- (Cactus Mine). rying.

Large-scale precious metal mining market for silver is expected to grow in reasonable to assume that it will become ceased decades ago. However, all the future due to its high demand for important again, particularly given the precious metal mining claims in the industrial uses in solar panel ongoing exploration activities at the southern San Francisco Mountains are construction, wood preservatives, and mines. patented (a claim for which the Federal medical supplies (Ash 2010, p. 1). Since As previously described, Eriogonum Government has passed its title to the 2009, the value of copper increased soredium and Lepidium ostleri are claimant, making it private land) and more than 140 percent (Crigger 2010, endemic to soils derived from continued occasional explorations for pp. 1–2; Murdoch 2010, pp. 1–2). The Ordovician limestone. In addition to silver, zinc, and copper deposits are market for copper, one of the world’s precious metals, this formation is mined reported for the area (Bon and Gloyn most widely used industrial metals, is for crushed limestone. The limestone is 1998, p. 12; Franconia Minerals expected to increase in the future due to removed from quarry sites and sold for Corporation 2002, p. 1; Rupke 2010, demand for electrical wiring, plumbing, marble landscaping gravel. pers. comm.). In fact, in 1998 this area and car fabrication (Crigger 2010, pp. 1– Marble landscaping gravel quarries in was one of the most active precious 2; Murdoch 2010, pp. 1–2). In Utah, Eriogonum soredium and Lepidium metal exploration areas in the State (Bon precious metals accounted for ostleri’s range are open-pit mines that and Gloyn 1998, pp. 11–12). In addition, approximately 14 percent of the total result in the removal of the habitat exploration activities were reinitiated at value of minerals produced in 2009 (up substrate for these species. Four active the Horn Silver Mine in 2002, from 8 percent in 2008) (Utah GOPB limestone quarry sites occur within a confirming that extensive amounts of 2010, pp. 195–196). Utah’s precious couple hundred feet of three of the sphalerite (the major ore of zinc) remain metal gross production value increased species’ populations—Cupric Mine, in the mine (Franconia Minerals $221 million (57 percent) compared to Copper Gulch, and Indian Queen Corporation 2002, p. 1). 2008, due to increased production of populations (Table 3). We expect the demand for silver and both gold and silver (Utah GOPB 2010, A limestone quarry is considered copper to increase in the future (Crigger p. 196). Because the San Francisco active from the time quarrying begins 2010, pp. 1–2; Murdoch 2010, pp. 1–2). Mountains area was one of the most until the site is reclaimed. Generally, The price for silver nearly tripled over productive areas during the last large- gravel pits are maintained below 5 ac the last decade (Stoker 2010, p. 2). The scale precious metal mining efforts, it is (2 ha) of surface disturbance to avoid

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large mine status, which requires potential mitigation opportunities (see similarities and proximity, it is likely permitting (Munson 2010, pers. comm.). Factor D, Inadequacy of Existing that the plant occupied the entire 26 ac Hence, an area may contain many Regulatory Mechanisms). (11 ha) that are now being quarried. quarries at or below the 5-ac (2-ha) As stated in the Distribution and There are 23 ac (9 ha) of remaining threshold, all of which may be Population Status section above, occupied habitat in the three considered active (Munson 2010, pers. Eriogonum soredium and Lepidium populations (Table 4; Darnall et al. comm.). A mine also may stay below 5 ostleri occur in the same overlapping 2010, entire), but these areas are at risk ac (2 ha) as long as previously disturbed locations, each occupying a total of 52 of being impacted by the gravel pits. areas at the quarry site are reclaimed ac (21 ha) in four populations. We The only population not impacted by prior to expanding quarrying operations estimate the quarries at the three gravel pits—the Grampian Hill (Munson 2010, pers. comm.). The population sites (Cupric Mine, Copper population—is 29 ac (12 ha) in size. Cupric Mine, Copper Gulch, and Indian Gulch, and Indian Queen) historically Even so, the Grampian Hill population Queen populations of Eriogonum resulted in the loss of 26 ac (11 ha) of is only 1 mi (1.6 km) away from the soredium and Lepidium ostleri all have suitable habitat adjacent to currently nearest gravel pit and, as previously small individual gravel pits—resulting known plant locations (Table 4; Darnall discussed, it is impacted by precious in a lack of environmental analyses and et al. 2010, entire). Based on habitat metal mining.

TABLE 4—AREAS OF SURFACE DISTURBANCE ASSOCIATED WITH GRAVEL MINING IN THE VICINITY OF Eriogonum Soredium AND Lepidium Ostleri POPULATIONS

Adjacent surface Population Occupied area disturbance

Indian Queen ...... 9 ac (3.6 ha) ...... 14 ac (5.7 ha). Copper Gulch ...... 5 ac (2.0 ha) ...... 5 ac (2.0 ha). Cupric Mine ...... 9 ac (3.6 ha) ...... 7 ac (2.8 ha).

Total ...... 23 ac (9.2 ha) ...... 26 ac (10.5 ha).

Quarrying is occurring in the impacted, particularly given the ongoing Health Administration 2010, p. 1). In immediate vicinity of the Cupric Mine need for limestone gravel in nearby addition to regional distribution, population (Evenden 1998, p. 5; communities, as described below. crushed limestone quarried from the Robinson 2004, p. 8; Frates 2006, pers. Between 1995 and 2001, the vicinity of the Copper Gulch, Indian comm.; Roth 2010a, p. 2; Miller 2010e, production of building and landscaping Queen, and Cupric Mine populations is pers. comm.; Munson 2010, pers. stones in Utah jumped nearly 700 transported to a distribution center for comm.); we anticipate this mining percent (Stark 2008, p. 1). Construction the Home Depot in the nearby town of activity will continue to impact this sand, gravel, and crushed stone Milford, where it is packaged and population in the near future (Roth production rank as the second most shipped nationwide (Munson 2010, 2010a, p. 2). The estimated area of valuable commodity produced among pers. comm.). occupied habitat of the Cupric Mine industrial minerals in Utah (Bon and To summarize, mining throughout population in the vicinity of this gravel Krahulec 2009, p. 5). The use of Eriogonum soredium and Lepidium pit is 9 ac (4 ha) (Table 4; Darnall et al. landscape gravel will likely continue to ostleri’s range reduced available habitat 2010, entire), while gravel mining has increase in nearby Washington County, and impacted the species’ populations resulted in surface disturbance of which is one of the fastest growing in the past (Table 3; Table 4). All four approximately 7 ac (3 ha) (Table 4; counties in the United States and Utah populations of Eriogonum soredium and Darnall et al. 2010, entire). No quarrying (U.S. Census Bureau 2010b, entire; Utah Lepidium ostleri co-occur with precious activity was observed in the vicinity of GOPB 2010, p. 48). The Washington metal mining activities. For both the Copper Gulch and Indian Queen County population has doubled every species, three of the four populations— populations in 2010; however, the 10 years since 1970. In 2009, there were the Cupric Mine, Copper Gulch, and gravel pits are still considered active 145,466 people estimated to live in Indian Queen populations—co-occur and thus additional gravel mining could Washington County (Utah GOPB 2010, with active gravel mining pits. occur at any time. For both of these p. 49). Over 700,000 people are Available information suggests that all populations (Copper Gulch and Indian expected to live in Washington County populations are likely to be impacted by Queen), adjacent surface disturbance is by 2050 (Utah GOPB 2008, entire). precious metal and gravel mining in the equal to or greater than the remaining Based on the projected population foreseeable future based on mineral occupied habitat (Table 4; Darnall et al. growth for Washington County, we availability and market projections. 2010, entire). believe that the regional demand for Therefore, we have determined that It is important to note that all of the landscape gravel will continue to mining is a threat to E. soredium and L. active quarries are near or above the 5- increase in southwestern Utah in the ostleri now and in the foreseeable ac (2-ha) regulatory limit. Thus, we foreseeable future. future. anticipate that the operators will file for Much of the rock quarried in Utah large mine permits, partially restore the does not travel far because of the (4) Nonnative Invasive Species disturbed areas to be below the 5-ac associated high cost of transport (Stark Potential impacts of nonnative (2-ha) limit, or will begin new gravel 2008, p. 1). The quarries of the southern invasive species to native plants and pits (Munson 2010, pers. comm.). Under San Francisco Mountains are the closest their habitat are discussed above in the any of these scenarios, it is likely that quarries providing crushed limestone Nonnative Invasive Species section occupied habitats of Eriogonum for southwestern Utah, including under Factor A for Astragalus soredium and Lepidium ostleri will be Washington County (Mine Safety and hamiltonii. Bromus tectorum is

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considered the most ubiquitous invasive populations occupy relatively small metals and landscape rock based on the species in the Intermountain West due areas ranging between 5 ac (2 ha) and 29 economic outlook for these commodities to its ability to rapidly invade native ac (12 ha). A range fire could easily and the lack of alternative sources for dryland ecosystems and outcompete impact, or eliminate, one or all crushed limestone in southwestern Utah native species (Mack 1981, p. 145; Mack populations. Therefore, the potential which will result in increased impacts and Pyke, 1983, p. 88; Thill et al. 1984, expansion of invasive species and to E. soredium and L. ostleri and their p. 10). associated fire is a threat to the species, habitat. Bromus tectorum is a dominant especially when considering the limited Bromus tectorum is documented to species on the lower slopes of the distribution of the species and the high occur in all four populations of Grampian Hill population and is present potential of stochastic extinctions (as Eriogonum soredium and Lepidium in all populations of Eriogonum discussed in the Small Population Size ostleri. The threat of fire caused by soredium and Lepidium ostleri (Miller section under Factor E below). annual nonnative species invasions is 2010g, p. 5; Roth 2010a, p. 1). Surface In summary, nonnative invasive exacerbated by mining activities and disturbances can increase the species and fire are threats to both global climate change (see the Climate occurrence and densities of B. tectorum species. Bromus tectorum occurs in all Change and Drought section under (see Nonnative Invasive Species section four Eriogonum soredium and Lepidium Factor E). The small population sizes under Factor A for Astragalus ostleri populations. Given the and extremely limited distribution make hamiltonii). As previously described, ubiquitous nature of B. tectorum in the this species especially vulnerable to increased mining activities and Intermountain West and its ability to stochastic extinction events, including associated surface disturbances are rapidly invade dryland ecosystems localized mining activities and wildfires expected to occur in the occupied (Mack 1981, p. 145, Mack and Pyke, caused by increased invasions of habitat for E. soredium and L. ostleri, 1983, p. 88, Thill et al. 1984, p. 10), we nonnative species (see the Small (see Mining, above), providing expect it to increase in the future in conditions allowing B. tectorum to response to surface disturbances from Population Size section under Factor E, expand into and increase density within increased mining activities and global below). E. soredium and L. ostleri habitat. climate change (see the Climate Change Therefore, we find that Eriogonum Invasions of annual, nonnative and Drought section under Factor E for soredium and Lepidium ostleri are species, such as Bromus tectorum, are Astragalus hamiltonii). An increase in threatened by the present or threatened well documented to contribute to B. tectorum is expected to increase the destruction, modification, or increased fire frequencies (Brooks and frequency of fires in E. soredium and L. curtailment of the species’ habitat or Pyke 2002, p. 5; Grace et. al 2002, p. 43; ostleri’s habitat, and the species are range, now and in the foreseeable Brooks et. al 2003, pp. 4, 13, 15). The unlikely to survive increased wildfires future, based on impacts from mining disturbance caused by increased fire due to their small population sizes. activities and nonnative invasive frequencies creates favorable conditions Therefore, we determine that nonnative species. for increased invasion by B. tectorum. invasive species and associated Factor B. Overutilization for The end result is a downward spiral wildfires constitute a threat to all Commercial, Recreational, Scientific, or where an increase in invasive species populations of E. soredium and L. ostleri Educational Purposes results in more fires, more fires create now and into the foreseeable future. more disturbances, and more Summary of Factor A Eriogonum soredium and Lepidium disturbances lead to increased invasive ostleri are considered attractive rock species densities. The risk of fire is At this time, based on best available garden plants. In particular, Eriogonum expected to increase from 46 to 100 information, we do not believe that soredium is considered ‘‘one of the most percent when the cover of B. tectorum grazing and recreational activities fantastic of its genus’’ by a major rock increases from 12 to 45 percent or more significantly threaten Eriogonum garden seed distributor (Alplains Seed (Link et al. 2006, p. 116). In the absence soredium and Lepidium ostleri now or Catalog 2010b, pp. 2 and 12). Seeds for of exotic species, it is generally in the foreseeable future. However, we both species are available commercially estimated that fire return intervals in determine that mining and nonnative and they are harvested from wild xeric sagebrush communities range from invasive species are threats to populations (Alplains Seed Catalog 100 to 350 years (Baker 2006, p. 181). E. soredium and L. ostleri. 2010b, pp. 2 and 12). In some areas of the Great Basin (Snake Mining activities impacted Eriogonum River Plain), fire return intervals due to soredium and Lepidium ostleri habitat Eriogonum soredium and Lepidium B. tectorum invasion are now between 3 in the past and continue to be a threat ostleri plants are located on private and 5 years (Whisenant 1990, p. 4). to the species and its habitat throughout lands, which may provide some Most plant species occurring within a its range. All of the populations and the protection from collectors, as access is sagebrush ecosystem are not expected to majority of habitat are located on private restricted on these private lands. be adapted to frequent fires, as lands with an extensive history and Despite the attractiveness of the two evidenced in the lack of evolutionary recent successful exploration activities species to horticultural enthusiasts, we adaptations found in other shrub- for precious metal mining. Three of the have no information indicating that dominated fire adapted ecosystems like four populations are located in the collection in the wild is a threat to the chaparral (Baker, in press, p. 17). immediate vicinity of gravel mining. species. In the absence of Bromus tectorum, Gravel mining is expected to continue In summary, overutilization for Eriogonum soredium and Lepidium and expand in the near future (Munson commercial purposes could be a ostleri grow in sparsely vegetated 2010, pers. comm.). Considering the concern to Eriogonum soredium and communities unlikely to carry fires (see small acreages of occupied habitat Lepidium ostleri due to their desirability Habitat section). Thus, the species are immediately adjacent to existing gravel to collectors; however, we do not have unlikely to be adapted to survive fires. pits, continued mining may result in the information that leads us to believe that As described in the distribution section, loss of these populations in the overutilization for commercial purposes the total range of these species are less foreseeable future. We anticipate an is a threat now or is likely to become than 5 mi2 (13 km2) and each of the four increase in the demand for precious one in the foreseeable future.

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Factor C. Disease or Predation and federally listed species (Baker 2010, Despite the overall lack of information Disease and herbivory of the species pers. comm.). Eriogonum soredium and on the population ecology of Eriogonum are unknown. We do not have any Lepidium ostleri are not State listed but soredium and Lepidium ostleri, we information indicating that disease is are on the BLM sensitive species list. If know that small populations are at an impacting either Eriogonum soredium or UDOGM is made aware of these rare increased risk of extinction due to the Lepidium ostleri. We also do not have species being impacted by mining potential for inbreeding depression, loss any information indicating herbivory is activities, they could consider of genetic diversity, and lower sexual minimizing and mitigating impacts; reproduction rates (Ellstrand and Elam occurring from livestock (see the however, there is no requirement to 1993, entire; Wilcock and Neiland 2002, Livestock Grazing section under Factor address species that are not federally p. 275). We do not have a clear A), wildlife, or insects (Kass 1992a, p. listed in the mine permitting process understanding of the reproductive 9; Evenden 1998, entire; Miller 2010a, (Baker 2010, pers. comm.). biology of E. soredium and L. ostleri, but entire; Miller 2010b, entire; Miller In summary, the existing regulatory recruitment appears to be low or 2010c, entire; Roth 2010a, entire). Thus, mechanisms are not adequate to protect episodic for E. soredium (Kass 1992a, p. we do not consider disease and Eriogonum soredium and Lepidium 7; Roth 2010a, p. 1). Low levels of predation to be threats to these species. ostleri from becoming threatened or recruitment in small populations may Factor D. The Inadequacy of Existing endangered by gravel mining on private be due to inbreeding depression caused Regulatory Mechanisms lands. The active gravel pits are by the lack of genetic diversity and low approaching the 5-ac (2-ha) threshold There are no endangered species laws levels of genetic exchange between that would normally incur regulatory protecting plants on private, State, or populations (Ellstrand and Elam 1993, environmental impact assessments; entire; Wilcock and Neiland 2002, Tribal lands in Utah. Eriogonum however, no assessments are completed p. 275). soredium and Lepidium ostleri are listed for these mines. Even if an Mining, or a single random event such as bureau sensitive plants for the BLM. environmental impact assessment is as a wildfire (see Factor A), could Should the species be located on BLM completed for any of the mines, the extirpate an entire or substantial portion lands, limited policy-level protection by existing mining laws do not necessarily of a population given the small acreages the BLM is afforded through the Special apply to BLM sensitive species: They of occupied habitat. Species with Status Species Management Policy recommend, and do not mandate, limited ranges and restricted habitat Manual # 6840, which forms the basis species protection or mitigation. Thus, requirements also are more vulnerable for special status species management we find that the inadequacy of existing to the effects of global climate change on BLM lands (BLM 2008e, entire). mechanisms to regulate mining (see the Climate Change and Drought Eriogonum soredium and Lepidium activities on private lands is a threat to section below; IPCC 2002, p. 22; Jump ostleri are predominantly threatened by all populations of E. soredium and L. and Penuelas 2005, p. 1016; Machinski mining related activities (see Factor A). ostleri now and in the foreseeable et al. 2006, p. 226; Krause 2010, p. 79). Over 90 percent of the species’ known future. Overall, we consider small population potential habitat and all of the known size an intrinsic vulnerability to populations are located on lands with Factor E. Other Natural or Manmade Eriogonum soredium and Lepidium private, patented mining claims (Kass Factors Affecting Its Continued ostleri that may not rise to the level of 1992a, p. 9; Evenden 1998, p. 9; Roth Existence a threat on its own. However, the small 2010a, pp. 1–2). Mineral mining is Natural and manmade threats to population sizes rise to the level of a subject to the Utah Mined Land Eriogonum soredium and Lepidium threat because of the combined effects of Reclamation Act of 1975, which ostleri’s survival include: (1) Small small population sizes, limited includes mineral mining on State and population size and (2) climate change distribution, and narrow overall range, private lands, including lands with and drought. compounded by the effects of global patented mining claims (Utah Code climate change (see below) and the Title 40, Chapter 8). The ESA applies to (1) Small Population Size potential for stochastic extinction events all surface activities associated with the General potential impacts of small such as mining and invasive species exploration, development, and population sizes to plants are discussed (see Factor A). Therefore, we consider extraction of mineral deposits. above in the Small Population Size small localized population size, in The Utah Mined Land Reclamation section under Factor E for Astragalus combination with mining, invasive Act mandates the preparation of State hamiltonii. species, and climate change, to be a environmental impact assessments for As previously described (see the threat to both species now and in the large mining operations, which are Distribution and Population Status foreseeable future. defined as mining operations which section), the entire ranges of both create more than 5 ac (2 ha) of surface species are located in an area of less (2) Climate Change and Drought disturbance (UDOGM 2010b, p. 1). The than 5 mi2 (13 km2). Within this range, Potential impacts of climate change existing gravel mining activities within each of the four individual populations’ and drought to the geographic area are the range of Eriogonum soredium and occupied habitat areas are very small, characterized under Factor E for Lepidium ostleri (see Factor A, Mining) ranging from 5 ac (2 ha) to 29 ac (12 ha) Astragalus hamiltonii. As discussed are approaching the 5-ac (2-ha) (based on Miller 2010g, Appendix B). above, Eriogonum soredium and regulatory threshold. Thus, we Eriogonum soredium and Lepidium Lepidium ostleri have a limited anticipate that the operators will file for ostleri can be dominant in small areas distribution and populations are large mine permits, partially restore the of occupied habitat, containing localized and small. In addition, these disturbed areas to be below the 5-ac thousands of individuals. However, the populations are restricted to very (2-ha) limit, or will begin new gravel small areas of occupation and the specific soil types. Global climate pits (Munson 2010, pers. comm.). narrow overall range of the species change exacerbates the risk of extinction State environmental impact make it highly susceptible to stochastic for species that are already vulnerable assessments must address, at a extinction events and the effects of due to low population numbers and minimum, the potential effects on State inbreeding depression. restricted habitat requirements (see the

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Climate Change and Drought section disturbances associated with mining Eriogonum soredium and Lepidium under Factor E for Astragalus activities also will likely increase the ostleri (see Factor A). Increased hamiltonii). extent and densities of nonnative nonnative species in the habitat of E. Predicted changes in climatic invasive species and with it the soredium and L. ostleri can increase fire conditions include increases in frequencies of fires (see Nonnative frequency and severity. Because E. temperature, decreases in rainfall, and Invasive Species section under Factor soredium and L. ostleri are not likely increases in atmospheric carbon dioxide A). Given the cumulative effects of the adapted to persist through fires, in the American Southwest (Walther et potential population reduction and wildfires can have a significant impact al. 2002, p. 389; IPCC 2007, p. 48; Karl habitat loss (of already small on these small populations. et al. 2009, p. 129). Although we have populations) associated with mining, Although small population size and no information on how Eriogonum invasive species, and fire, we are climate change make the species soredium and Lepidium ostleri will concerned about the impacts of future intrinsically more vulnerable, we are respond to effects related to climate climate change to Eriogonum soredium uncertain whether they would rise to change, persistent or prolonged drought and Lepidium ostleri. the level of threat by themselves. conditions are likely to reduce the In summary, we find it difficult to However, when combined with the frequency and duration of flowering and analyze the potential effects of global threats listed under Factor A (mining germination events, lower the climate change on Eriogonum soredium and nonnative invasive species), small recruitment of individual plants, and Lepidium ostleri in the absence of population size is likely to rise to the compromise the viability of demographic trend data for the species level of threat in the foreseeable future. populations, and impact pollinator which would allow us to analyze how At this time, we are uncertain of the availability (Tilman and El Haddi 1992, they respond to climate change over degree to which climate change p. 263; Harrison 2001, p. 78). The time. However, because of the threats of constitutes a threat to the species. smallest change in environmental mining, nonnative species, and small Finding factors, especially precipitation, plays a population size, the cumulative effects decisive role in plant survival in arid of climate change may be of concern for As required by the ESA, we regions (Herbel et al. 1972, p. 1084). these species in the future. At this time, conducted a review of the status of the Drought conditions led to a noticeable we believe that the state of knowledge species and considered the five factors decline in survival, vigor, and concerning the localized effects of in assessing whether Eriogonum reproductive output of other rare and climate change is too speculative to soredium and Lepidium ostleri are endangered plants in the Southwest determine whether climate change is a endangered or threatened throughout all during the drought years of 2001 threat to these species in the foreseeable or a significant portion of their range. through 2004 (Anderton 2002, p. 1; Van future. However, we will continue to We examined the best scientific and Buren and Harper 2002, p. 3; Van Buren assess the potential of climate change to commercial information available and Harper 2004, entire; Hughes 2005, threaten the species as better scientific regarding the past, present, and future entire; Clark and Clark 2007, p. 6; Roth information becomes available. threats faced by E. soredium and L. 2008a, entire; Roth 2008b, pp. 3–4). ostleri. We reviewed the petition, Similar responses are anticipated to Summary of Factor E information available in our files, and adversely affect the long-term We assessed the potential risks of other available published and persistence of E. soredium and L. ostleri. small population size, climate change, unpublished information, and we Climate change is expected to and drought to Eriogonum soredium and consulted with E. soredium and L. increase levels of carbon dioxide Lepidium ostleri populations. E. ostleri experts and other Federal and (Walther et al. 2002, p. 389; IPCC 2007, soredium and L. ostleri have a highly State agencies. p. 48; Karl et al. 2009, p. 129). Elevated restricted distribution and exist in four This status review identified threats levels of carbon dioxide lead to populations scattered over an area that to the species attributable to Factors A, increased invasive annual plant is less than 5 mi2 (13 km2). Individual D, and E. The primary threat to the biomass, invasive seed production, and populations occupy very small areas species is habitat destruction from pest outbreaks (Smith et al. 2000, pp. with large densities of plants. Even in precious metal and gravel mining on 80–81; IPCC 2002, pp. 18, 32; Ziska et the absence of information on genetic private lands (Factor A). All populations al. 2005, p. 1328) and will put diversity, inbreeding depression, and are located in the vicinity of historical additional stressors on rare plants reproductive effort, we believe a random precious metal mining activities, at already suffering from the effects of stochastic event could impact a which ongoing exploration activities elevated temperatures and drought. significant portion of a population. show the potential for continued mining The actual extent to which climate Small populations that are restricted by activities in the foreseeable future. change itself will impact Eriogonum habitat requirements also are more Three of the four populations are in the soredium and Lepidium ostleri is vulnerable to the effects of climate immediate vicinity of limestone unclear, mostly because we do not have change, such as prolonged droughts and quarries, all of which are considered long-term demographic information that increased fire frequencies. active. We expect an increase in would allow us to predict the species’ While naturally occurring droughts precious metal and limestone mining at responses to changes in environmental are not likely to impact the long-term these locations in the foreseeable future, conditions, including prolonged persistence of the species, an increase in with associated loss and fragmentation drought. Any predictions at this point periodic prolonged droughts due to of Eriogonum soredium and Lepidium on how climate change would affect climate change could impact the species ostleri populations. these species would be speculative. across their entire range in the future. Bromus tectorum occurs within all However, as previously described, the Global climate change, particularly four Eriogonum soredium and Lepidium species are threatened by mining when assessed cumulatively with small ostleri populations. It is a highly activities (see Mining, Factor A) which population sizes and threats from invasive nonnative species that spreads will likely result in the loss of large mining activities, could increase the quickly in response to surface numbers of individuals and maybe even density of invasive annual plants, which disturbances such as mining. As entire populations. Increased surface are already present in the habitat of previously discussed, both species

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occur in the immediate vicinity of being made to add or remove qualified listing priority. The guidance indicates precious metal and limestone mines— species from the Lists of Endangered that species with the highest magnitude mines inherently cause surface and Threatened Wildlife and Plants. of threat are those species facing the disturbances from excavation activities We reviewed the available greatest threats to their continued and the construction of roads and other information to determine if the existing existence. These species receive the infrastructure. Global climate change is and foreseeable threats render the highest listing priority. We consider the expected to increase drought conditions species at risk of extinction now such threats that Eriogonum soredium and in the Southwest and increase the that issuing an emergency regulation Lepidium ostleri face to be moderate in spread of nonnative invasive species. temporarily listing the species under magnitude because the major threats The biggest concern associated with the section 4(b)(7) of the ESA is warranted. (mining, nonnative species, small increase in invasive species is the threat We determined that issuing an population size, climate change, and of increased wildfire (Factor A), emergency regulation temporarily inadequacy of existing regulatory particularly when considering the small listing the species is not warranted at mechanisms), while serious and population sizes and small occupied this time because there is no emergency occurring rangewide, do not collectively habitat area associated with these posing a significant risk to the well- rise to the level of high magnitude. For species. being of Eriogonum soredium or example, active mining is currently The magnitude of the biological Lepidium ostleri. We do not believe that impacting only one of the four threats posed by the species’ small any of the potential threats are of such populations. population sizes and limited ranges are great immediacy and severity that The magnitude of Factor A is not well understood due to the lack of would threaten all of the known considered moderate, because, although information available on the ecology of populations with the imminent risk of we think that all populations have been Eriogonum soredium and Lepidium extinction. However, if at any time we impacted by mining in the past and ostleri. Future studies may provide us determine that issuing an emergency three of the four populations occur in with a more thorough understanding of regulation temporarily listing the immediate vicinity of gravel pits, threats posed by pollinator limitation, Eriogonum soredium and Lepidium mining activities are currently ongoing inbreeding depression, and the potential ostleri is warranted, we will initiate this in one of these gravel pits. Ongoing lack of genetic diversity over the action at that time. mining in the habitat of E. soredium and species’ range. However, the small areas Listing Priority Number L. ostleri is expected to increase the of occupied habitat make the species The Service adopted guidelines on density of Bromus tectorum, thereby highly vulnerable to habitat destruction facilitating the spread of fire. B. through mining-related activities as well September 21, 1983 (48 FR 43098), to establish a system for utilizing available tectorum is currently documented in all as random extinction events, including populations. invasive species (and the inherent risk resources for the highest priority species We considered the magnitude of of increased fires) and the potential when adding species to the Lists of Factor D to be moderate. All future effects of global climate change Endangered or Threatened Wildlife and (Factor E). Plants or reclassifying species listed as populations are located on private lands The existing regulatory mechanisms threatened to endangered status. These with patented mining claims, where are not adequate to protect Eriogonum guidelines, titled ‘‘Endangered and existing regulatory mechanisms are not soredium and Lepidium ostleri from the Threatened Species Listing and adequate to protect Eriogonum soredium primary threat of mining, particularly Recovery Priority Guidelines,’’ address and Lepidium ostleri from the impacts because both species occur entirely on the immediacy and magnitude of of mining. All populations have the private lands. The inadequacy of threats, as well as the level of taxonomic potential to be impacted by gravel and regulatory mechanisms (Factor D) on distinctiveness, by assigning priority in precious metal mining in the future; private land, combined with the descending order to monotypic genera however, because only one population economic and commercial value of the (genus with one species), full species, is currently impacted by gravel mining, limestone and precious metals, poses a and subspecies (or equivalently, DPS of we consider this threat to be moderate. serious threat to the continued existence vertebrates). We assigned Eriogonum We consider the magnitude of Factor of E. soredium and L. ostleri. Ongoing soredium and Lepidium ostleri each a E to be moderate, because although mining in the habitat of E. soredium and Listing Priority Number (LPN) of 8, small population size and climate L. ostleri has the potential to extirpate based on our finding that both species change make the species intrinsically one of the four populations in the near face threats of moderate magnitude that more vulnerable, we are uncertain of future; all populations have the are imminent. These threats include the whether they would rise to the level of potential to be extirpated by mining- present or threatened destruction, threat by themselves. However, when related activities in the foreseeable modification or curtailment of their collectively analyzed with the threats future (Factor A; Table 3). habitat, the inadequacy of existing listed under Factor A, they may rise to On the basis of the best scientific and regulatory mechanisms, and other the level of threat in the foreseeable commercial information available, we manmade factors affecting their future. Although we are uncertain about find that the petitioned action to list continued existence. These threats are the direct impacts of global climate Eriogonum soredium and Lepidium ongoing and, in some cases (such as change on Eriogonum soredium and ostleri as endangered or threatened is nonnative species), are considered Lepidium ostleri, we expect the species warranted. We will make a irreversible, because, in the case of to respond negatively to changed determination on the status of the nonnative species invasions, large-scale environmental conditions and drought, species as endangered or threatened invasions cannot be recovered to a primarily from an increase in nonnative when we do a proposed listing native functioning ecosystem. Our invasive species and wildfire (see Factor determination. However, as explained rationale for assigning E. soredium and A). The threats of nonnative invasive in more detail below, an immediate L. ostleri an LPN of 8 is outlined below. species and wildfire could result in the proposal of a regulation implementing Under the Service’s LPN Guidance, extirpation of all populations, especially this action is precluded by higher the magnitude of threat is the first because the populations are small in priority listing actions, and progress is criterion we look at when establishing a size.

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Under our LPN Guidance, the second work on higher priority listing actions defined as occurrence records or criterion we consider in assigning a with absolute statutory, court-ordered, locations recorded by one or more listing priority is the immediacy of or court-approved deadlines and final researcher over time within an threats. This criterion is intended to listing determinations for those species individual population. Despite ensure that the species facing actual, that were proposed for listing with additional searches in the San Francisco identifiable threats are given priority funds from Fiscal Year (FY) 2010. This Mountains and surrounding areas over those for which threats are only work includes all the actions listed in (including the Wah Wah Mountains, the potential or that are intrinsically the tables included in the section on Confusion Range, the Mountain Home vulnerable but are not known to be Preclusion and Expeditious Progress, Range, and the Tunnel Springs presently facing such threats. We below. Mountains), no other populations are consider all of the threats to be known to occur (Kass 1992c, pp. 4–5; Species Information—Trifolium imminent because we have information Evenden 1998, pp. 6–7, Appendix C; friscanum that the threats are identifiable and that Evenden 1999, pp. 2–3; Miller 2010c, the species are currently facing them Taxonomy and Species Description pp. 1, 4; Miller 2010e, pers. comm.; across their entire range. These actual, Trifolium friscanum is a dwarf mat- Roth 2010a, p. 4). identifiable threats are covered in forming or tufted perennial herb in the The five populations occur within greater detail in Factors A, D, and E of legume family (Fabaceae). Plants have a three mountain ranges in southwestern this finding. The majority of threats are Utah (see Figure 4 and Table 5). The two ongoing and, therefore, imminent, taproot and thick woody stem. T. friscanum is up to 1.2 in (3 cm) tall and largest populations, the Grampian Hill although gravel mining is currently and San Francisco Populations, occur impacting only one of the populations. has silver hairy leaves composed of three leaflets (Welsh et al. 2008, p. 486). on the southern tip on the San Francisco In addition to their current existence, Mountains in Beaver County. East of the we expect these threats to continue and Its flowers resemble those of other clover species and are arranged in heads San Francisco Mountains are the Beaver likely intensify in the foreseeable future. Lake Mountains, where the Lime The third criterion in our LPN of four to nine reddish-purple flowers with pale wings (Welsh et al. 2008, p. Mountain Population occurs on Lime guidance is intended to devote Mountain. West and south of the San resources to those species representing 486). Flowering occurs from late May to Francisco Mountains are the Wah Wah highly distinctive or isolated gene pools June, followed by fruit set in June Mountains. Along the southeastern edge as reflected by taxonomy. Eriogonum through July (Welsh et al. 2008, p. 486). of the Wah Wah Mountains is the soredium and Lepidium ostleri are valid Trifolium friscanum was originally southernmost population, the Blue taxa at the species level and, therefore, described by Stanley Welsh as T. Mountain population, which occurs receive a higher priority than andersonii var. friscanum from along the Beaver–Iron County boundary subspecies, but a lower priority than specimens collected on Grampian Hill line on Blue Mountain. The Tunnel species in a monotypic genus. in the southern San Francisco Springs Population occurs on Tunnel Therefore, we assigned E. soredium and Mountains in Beaver County, Utah Springs Mountains in Millard County. L. ostleri an LPN of 8. (Welsh 1978, p. 355). The variety was We will continue to monitor the elevated to species level in 1993 (Welsh The Tunnel Springs Mountains are west threats to Eriogonum soredium and 1993, p. 407). We accept the current and north of the Wah Wah Mountains. Lepidium ostleri and the species’ status taxonomy and consider T. friscanum to Two of the five Trifolium friscanum on an annual basis, and should the be a valid species and a listable entity populations overlap to some degree magnitude or the imminence of the under the ESA. with the previously described Eriogonum soredium and Lepidium threats change, we will revisit our Distribution and Population Status assessment of the LPN. ostleri populations. The Grampian Hill While we conclude that listing Trifolium friscanum is a narrow populations of all three species occur on Eriogonum soredium and Lepidium endemic known from five small Grampian Hill on the southern tip of the ostleri is warranted, an immediate populations containing nine sites on San Francisco Mountains in the same proposal to list this species is precluded private, SITLA, BLM, and USFS lands habitat. The San Francisco population by other higher priority listings, which in Beaver and Millard Counties, Utah of T. friscanum overlaps with the Indian we address in the Preclusion and (Figure 4; Table 5; Kass 1992c, pp. 4– Queen populations of E. soredium and Expeditious Progress section below. 5; Evenden 1998, pp. 6–7, Appendix C; L. ostleri. The remaining three Because we have assigned Eriogonum Evenden 1999, pp. 2–3; Miller 2010c, populations of T. friscanum—Blue soredium and Lepidium ostleri an LPN pp. 1, 4; Miller 2010e, pers. comm.; Mountain, Lime Mountain, and Tunnel of 8, work on a proposed listing Roth 2010a, p. 4). Populations are Springs—are located in nearby determination for Eriogonum soredium defined as groups of sites located in the mountain ranges as described above. and Lepidium ostleri is precluded by same geographic vicinity. Sites are BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

TABLE 5—ESTIMATED NUMBER OF Trifolium friscanum Plants (Evenden 1998, Appendix C; Miller 2010a, pers. comm.; Miller 2010c, pp. 1, 4; 2010d, p. 1; Roth 2010a, p. 4).

Estimated number of Population Land ownership/sites Trifolium friscanum plants

Blue Mountain ...... SITLA (1 site) ...... 250.

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TABLE 5—ESTIMATED NUMBER OF Trifolium friscanum Plants—Continued (Evenden 1998, Appendix C; Miller 2010a, pers. comm.; Miller 2010c, pp. 1, 4; 2010d, p. 1; Roth 2010a, p. 4).

Estimated number of Population Land ownership/sites Trifolium friscanum plants

Grampian Hill ...... Private (1 site) ...... Many 1,000s. San Francisco ...... BLM (Copper Gulch) (1 site) ...... 1,000. Private (Cactus Mine) (1 site) ...... 300. Private (Indian Queen) (1 site) ...... 3,000. Lime Mountain ...... BLM (1 site) ...... at least 125. Tunnel Springs Mountains ...... BLM (1 site) ...... 500. USFS (2 sites)* ...... 2,000. ESTIMATED TOTAL ...... 13,000. * Last surveyed in 1992. All other survey data from 2010.

Trifolium friscanum populations believe that the variation in population of the species; the species occupies only extend about 40 mi (64 km) from the estimates reflects variation in a fraction of the available habitat. The San Francisco Mountains and stretch population sizes, but is rather an artifact two largest populations—Grampian Hill across 650 mi2 (1,684 km2) (Figure 4). in survey effort and methods used. and San Francisco—occupy an Within that area, the five populations Many of the sites occur on private lands estimated 35 ac (14 ha) (2.3 percent) of are scattered in small, disjunct areas of where access is restricted, so population the available limestone and dolomite occupied habitat (Figure 4; Table 5). counts are estimated from observations. outcrops (Darnall et al. 2010, entire). We The majority of plants (71 percent of Accordingly, the available population do not have occupied habitat area totals the estimated populations) are located estimates are highly variable and for the remaining three populations, but in the San Francisco and Grampian Hill probably not accurate. During the 1990s, we believe they are smaller, based on populations (Miller 2010g, Appendix B). population estimates ranged from 3,500 field evaluations and the lower number Total occupied habitat for these two individuals (Evenden 1998, Appendix of individuals in these populations populations (four sites) is approximately C) to approximately 6,000 individuals (Kass 1992c, p. 3; Miller 2010d, p. 1; 35 ac (14 ha), each site ranging between (Kass 1992c, p. 8). In 2010, the total Roth 2010a, pp. 1–2). approximately 1 ac (0.4 ha) and 12 ac number of plants was estimated at Trifolium friscanum is typically (5 ha) (Darnall et al. 2010, entire). The roughly 13,000 (Table 5; Miller 2010a, found within sparsely vegetated pinion- Blue Mountain population occupies an pers. comm.; Miller 2010c, pp. 1, 4; juniper-sagebrush communities between area of approximately 0.33 ac (0.13 ha) Miller 2010d, p. 1; Roth 2010a, p. 4). 5,640 and 8,440 ft (1,720–2,573 m) in (Darnall et al. 2010, entire). We do not Thus, we do not have accurate elevation. Associated species include have population estimates for the areas population estimates or trends for this Ephedra spp. (Mormon tea), Gutierrezia of occupied habitat for the Tunnel species. sarothrae (snakeweed), Cercocarpus Springs sites (Tunnel Springs intricatus (dwarf mountain-mahogany), Habitat population) or the Lime Mountain and Petradoria pumila (rock goldenrod). population, but we assume the area of Trifolium friscanum is a narrow Associated rare species in the southern occupied habitat to be similar to or endemic restricted to soils derived from San Francisco Mountains include smaller than the San Francisco, volcanic gravels, Ordovician limestone, Eriogonum soredium and Lepidium Grampian Hill, and Blue Mountain and dolomite outcrops. Soils are ostleri, which generally grow on the populations, because these populations shallow, with gravels, rocks, and same substrate in similar but more open contain fewer than or similar numbers boulders on the surface (Kass 1992c, habitats adjacent to T. friscanum. of plants as those estimated for the other p. 3; Miller 2010d, p. 1). Life History sites (Table 5). In the southern San Francisco No information is available on the life The total number of Trifolium Mountains, where the majority of plants history of this species. friscanum individuals in Table 5 was are located, there are 845 ac (342 ha) of derived from observational counts or Ordovician limestone and 719 ac (291 Summary of Information Pertaining to estimates. For the Grampian Hill ha) of dolomite outcrops (Darnall et al. the Five Factors—Trifolium population, the estimate was ‘‘many 2010, entire). Ordovician limestone is friscanum thousands’’ (Miller 2010a, pers. comm.). rare within a 50-mi (80-km) radius of In making our 12-month finding on For the purpose of this finding, ‘‘many the San Francisco Mountains, but the petition, we considered and thousands’’ is interpreted as dolomite outcrops are common in the evaluated the best available scientific approximately 5,000 individuals. Four Wah Wah Mountain Range to the west and commercial information pertaining of the 9 sites contain 500 or fewer plants (Miller 2010g, Appendix F). We have no to Trifolium friscanum in relation to the (Table 5). information on the extent of volcanic five factors provided in section 4(a)(1) of The population estimates were not gravels in the area. As previously the ESA (see the full description of based on actual counts of plants but on described (see Distribution and these five factors in the Summary of cursory observations with inherent Population Status), we are not aware of Information Pertaining to the Five observer biases. Similar to Eriogonum any additional populations of the Factors—Astragalus hamiltonii, above). sorenium and Lepidium ostleri, the species, despite additional potentially plants grow in dense mat-forming suitable habitats. Factor A. The Present or Threatened clusters, making it difficult to determine We do not know if there are other Destruction, Modification, or the number of individuals within a limiting factors associated with the Curtailment of Its Habitat or Range cluster. Because individual plants are limestone and dolomite formations that The following factors may affect the difficult to distinguish, we do not restrict the habitat use and distribution habitat or range of Trifolium friscanum:

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(1) Livestock grazing, (2) recreational species now or will impact the species Lepidium ostleri, Factor A, Mining. This activities, (3) mining, and (4) nonnative in the foreseeable future at a level that analysis applies to the Grampian Hill invasive species. threatens Trifolium friscanum. and San Francisco populations of Trifolium friscanum, because the three (1) Livestock Grazing (2) Recreational Activities species co-occur (see Distribution and Potential impacts of livestock grazing Potential impacts of recreational Population Status). In addition, we to plants are discussed above in the activities to plants are discussed above evaluated mining activity and its Livestock Grazing section under Factor in the Recreational Activities Section, impacts to the remaining three A for Astragalus hamiltonii. Factor A, for Astragalus hamiltonii. populations of T. friscanum. All Trifolium friscanum populations Because we know that OHV use is widespread across the southwestern To review, precious metal mining in on BLM lands are located on active the southern San Francisco Mountains grazing allotments (Galbraith 2010, pers. landscape, we analyzed its occurrence is likely to impact the Grampian Hill comm.). Adjacent habitats on SITLA in Triolium friscanum’s habitat for this and San Francisco populations of and private lands are subject to the same finding. Trifolium friscanum (Table 6). The grazing practices as the allotted BLM Access to the majority of occupied Grampian Hill population is located in land if the habitats are not fenced habitat on private lands is closed to all the area of the King David Mine, which (Galbraith 2010, pers. comm.). The vehicles, including OHVs (Miller 2010g, is part of the historical Horn Silver SITLA and private lands are only p. 5). There are no known impacts of Mine. The San Francisco population partially fenced in these areas; thus we OHV use in Trifolium friscanum’s (which overlaps the Indian Queen can assume that grazing occurs. The occupied habitat on private lands population of Eriogonum soredium and USFS sites of the Tunnel Springs (Miller 2010f, pers. comm.; Roth 2010a, Lepidium ostleri) is in the vicinity of population are not grazed (Kitchen pp. 1–2). The OHV use also does not 2010, pers. comm.). appear to impact T. friscanum’s habitat mine shafts near the Cactus Mine, an on SITLA, BLM, or USFS lands historical copper mine (see E. soredium The Trifolium friscanum population (Pontarolo 2009, pers. comm.; 2010, on BLM lands in the Tunnel Springs and L. ostleri, Factor A, Mining). pers. comm.; Miller 2010f, pers. comm.; Mountains was likely impacted by the Although large-scale precious metal Roth 2010a, pp. 1–2). Therefore, we do construction of an allotment boundary mining in the area ceased decades ago, not believe that recreational activities fence 10 years ago (Evenden 1999, p. 7; we believe mining is likely to occur threaten T. friscanum now, nor do we Roth 2010a, p. 2). The fence runs along again in the foreseeable future due to anticipate that these activities will a ridge and through approximately 500 patent rights and ongoing exploration become a threat in the foreseeable ft (150 m) of T. friscanum habitat (Roth for silver, zinc, and copper deposits— future. 2010b, p.1). The construction of the including recent exploration activities at fence may have impacted approximately (3) Mining the Horn Silver Mine (see E. soredium and L. ostleri, Factor A, Mining). 10 percent of the species’ habitat in the As previously described (see area (Roth 2010b, p.1). Livestock and Precious metal mining in the vicinity of Distribution and Population Status), the Grampian Hill and San Francisco wildlife trailing occur along the fence, Trifolium friscanum occurs in five resulting in trampling of individual populations is of concern because these population areas: Blue Mountain, populations comprise the species’ plants and soil compaction (Roth 2010a, Grampian Hill, San Francisco, Lime largest known populations, containing p. 2). No plants occur within 100 ft (30 Mountain, and Tunnel Springs the vast majority of known individuals m) of either side of the fence (Roth Mountains. For purposes of the (9,300 individuals, or 71 percent of the 2010a, p. 2). following analysis, it is important to species’ estimated total population) Although much of the species’ habitat note that the Grampian Hill and San (Table 5). is accessible to livestock, we are not Francisco populations occur in the aware of any other disturbances or loss southern San Francisco Mountains in The Lime Mountain population has of plants from grazing (Kass 1992, the same vicinity and habitat as experienced precious metal mining entire; Evenden 1998, entire, Evenden Eriogonum soredium and Lepidium activity in the past (Table 6; Miller 1999, entire; Pontarolo 2009, pers. ostleri. The other three populations are 2010h, pp. 6–7). The last mining activity comm.; Miller 2010f, pers. comm.; Roth located in nearby mountain ranges. occurred in the early 1980s. We do not 2010a, p. 3). Available information The San Francisco Mountains have an anticipate additional mining, due to the suggests that livestock grazing is not extensive history of mining of precious small amounts of minerals that were occurring at a level that is impacting the metals and limestone gravel (Table 6; extracted (Miller 2010h, p. 7). We are species (Pontarolo 2009, pers. comm.; Evenden 1998, p. 3). We described this not aware of precious metal mining Miller 2010f, pers. comm.; Roth 2010a, mining history, the likelihood of future activities in the vicinity of the Blue p. 3). Therefore, we have no information mining activities, and effects to the Mountain or Tunnel Springs suggesting that grazing impacts the species under Eriogonum soredium and populations.

TABLE 6—MINING ACTIVITIES IN THE HABITAT OF Trifolium friscanum

Mining Activity Population Historical Current Future

Blue Mountain ...... gravel quarrying ...... active ...... gravel quarrying. Grampian Hill ...... silver, lead, copper, zinc (Horn Silver none ...... silver, lead, copper, zinc, landscape Mine). gravel quarrying. San Francisco ...... silver, lead, copper, zinc, gravel quar- active ...... silver, lead, copper, zinc, landscape rying (Cactus Mine). gravel quarrying.

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TABLE 6—MINING ACTIVITIES IN THE HABITAT OF Trifolium friscanum—Continued

Mining Activity Population Historical Current Future

Lime Mountain ...... silver, lead, copper, zinc, native gold, none ...... unknown. iron (Skylark, Independence & Ga- lena Mines). Tunnel Springs Mountains ...... unknown ...... none ...... unknown.

Gravel mining is known to occur to the limited extent of the Ordovician available gravel pit operations on within the range of Trifolium friscanum, limestone deposits across the landscape surrounding Federal lands (Blackett and particularly in the San Francisco (see Habitat), it is plausible that mining Tripp 1999, p. 33). Thus, the Blue Mountains and Wah Wah Mountains. activities could occur at the Grampian Mountain population area could become Impacts to T. friscanum from gravel Hill population. Even if gravel mining a primary source of gravel for mining in the southern San Francisco does not occur at the Grampian Hill Washington County and other nearby Mountains is similar to those analyzed population, we previously established communities, especially because the for Eriogonum soredium and Lepidium that this population is likely to be pit’s location on SITLA lands limits the ostleri, because of their co-occurrence impacted by precious metal mining. need for environmental regulations. (see E. soredium and L. ostleri, Factor A, A similar overlap in habitat types and Overall, it is likely that an increasing Mining, above). gravel quarrying (Table 6) occurs for this human population growth in Gravel mining in the southern San species in the Blue Mountain Washington County (U.S. Census Francisco Mountains is likely to impact population. The Blue Mountain Bureau 2010b, entire; Utah GOPB 2010, the San Francisco population of T. population, which is less than 1 ac (0.4 p. 48) will result in an increased friscanum and possibly the Grampian ha) in size, is located on SITLA lands demand for the limestone and gravel Hill population (Table 6). We estimate within a couple hundred feet (meters) of resources at and nearby known that 19 ac (8 ha) of suitable habitat is a gravel pit (Evenden 1998, p. 9; Roth populations of T. friscanum. disturbed by gravel mining activities 2010a, p. 4). This mine is not reclaimed To summarize, mining throughout near the San Francisco population of and, therefore, is considered active large portions of Trifolium friscanum’s Trifolium friscanum. Two quarries are (Darnall et al. 2010, entire). Therefore, range has impacted available habitat. located within 1,000 ft (300 m) of two we assume that continued gravel mining Three of the five known populations are sites (Cactus Mine and Copper Gulch) of will ultimately impact this population if located at historical precious metal the San Francisco population of T. it has not already occurred. The need for mines or gravel mines on private and friscanum. Based on habitat similarities gravel sources is expected to increase, SITLA lands (Table 5; Table 6; see and proximity, we believe the plant may because an increasing human Factor D). Two of these populations have occupied these areas prior to the population growth (U.S. Census Bureau (San Francisco and Grampian Hill) mining activity. Gravel pits in this area 2010b, entire; Utah GOPB 2010, p. 48) comprise the vast majority (71 percent) are considered active because they are will result in the need for increased of the known estimated population of not reclaimed—given their close road construction and maintenance in T. friscanum (Table 5). Precious metal proximity to known T. friscanum the future. Although the gravel in the mining is likely to impact populations plants, these gravel pits could impact Blue Mountain is mined for road of T. friscanum in the foreseeable future, the remaining occupied habitat of the construction projects, the effects particularly in the vicinity of the large species through additional quarrying analysis under E. soredium and L. Grampian Hill and San Francisco activities (i.e., removal of the entire ostleri (see Factor A, Mining) is relevant; populations. Gravel mining is expected substrate) or when roads and other i.e., mining for gravel will lead to the to increase in the future in response to infrastructure are constructed. The San degradation and loss of suitable habitat increased population growth and Francisco population currently occupies for Trifolium friscanum. limited availability of active gravel pits only 15 ac (6 ha) of habitat, distributed As previously discussed (see in nearby Washington County (see E. in three sites (Copper Gulch, Cactus Eriogonum soredium and Lepidium soredium and L. ostleri, Factor A). Mine, and Indian Queen) (Table 5; ostleri, Factor A, Mining, above), Available information suggests that Darnall et al. 2010, entire). construction sand, gravel, and crushed three of five populations will be Gravel mining also may impact the stone together rank as the second most significantly impacted by either Grampian Hill population of Trifolium valuable commodity produced among precious metal or gravel mining in the friscanum in the future. Although gravel industrial minerals in Utah (Bon and foreseeable future (see E. soredium and mining is not actively occurring at Krahulec 2009, p. 5). Gravel, stone, and L. ostleri, Factor A, Mining). Therefore, Grampian Hill, gravel pits exist within rock are generally mined for local and we have determined that mining is a 1 mi (1.6 km) of this T. friscanum regional distribution due to the high threat to T. friscanum now and in the population—near the Cupric Mine (see cost of transport. The quarries in the foreseeable future. E. soredium and L. ostleri, Factor A, San Francisco Mountains are the closest Mining, above). We do not know if crushed limestone quarries to (4) Nonnative Invasive Species gravel mining will definitely occur at Washington County, one of the fastest Potential impacts of nonnative the Grampian Hill population. However, growing counties in Utah (see E. invasive species to native plants and mining operations are expected to either soredium and L. ostleri, Factor A). In their habitat are discussed above in expand from the vicinity of the Cupric general, there has been a net loss of Astragalus hamiltonii, Factor A, Mine or be moved to a new location local sand and gravel supply pits in the Nonnative Invasive Species. The annual within the species’ habitat in the near Washington County area due to ongoing nonnative invasive grass, Bromus future (Munson 2010, pers. comm.). Due urban development and the lack of tectorum, is considered the most

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ubiquitous invasive species in the expansion of invasive species and gravel in the future (Table 6). We Intermountain West due to its ability to associated fire is a threat to the species, anticipate an increase in the demand for rapidly invade native dryland especially when considering the limited precious metals and landscape rock ecosystems and outcompete native plant distribution of the species and the high based on the economic outlook for these species (Mack 1981, p. 145; Mack and potential of stochastic extinctions (as commodities, regional availability, and Pyke 1983, p. 88; Thill et al. discussed in the Small Population Size, the proximity of these gravel mines to 1984, p. 10). Factor E, below). As described in the a rapidly expanding urban area and, Bromus tectorum occurs in the habitat Distribution section, the majority of therefore, an increase in impacts to T. and vicinity of the Grampian Hill and plants are located within the Grampian friscanum. San Francisco Trifolium friscanum Hill and San Francisco populations, Bromus tectorum is documented to populations, which also is where the where occurrences of B. tectorum are occur in the two largest of the five majority of plants occur (Table 5; Miller documented. Occupied habitat in these populations of Trifolium friscanum. The 2010c, pp. 2–5; Roth 2010a, p. 1). We do populations ranges from 1 to 12 ac (0.4 threat of fire caused by annual not know whether B. tectorum occurs in to 5 ha). nonnative species invasions is the other three populations, but given In summary, Bromus tectorum occurs exacerbated by mining activities and the ubiquitous distribution of B. in the two largest Trifolium friscanum global climate change (see the Climate tectorum in the Intermountain West, we populations (Grampian Hill and San Change and Drought section under expect it occurs in the vicinity of all Francisco populations, Table 5). Given Factor E). Small population sizes and populations (Novack and Mack, 2001, the ability of B. tectorum to rapidly extremely limited distribution of this p. 115). invade dryland ecosystems (Mack 1981, species make it especially vulnerable to Surface disturbances increase the p. 145; Mack and Pyke, 1983, p. 88; stochastic extinction events, including occurrence and densities of B. tectorum Thill et al. 1984, p. 10), we expect it to mining activities and wildfires caused (see Eriogonum soredium and Lepidium increase in the future in response to by increased invasions of nonnative ostleri, Factor A, Nonnative Invasive surface disturbance from increased species (see the Small Population Size Species; Mack 1981, p. 145). As mining activities and global climate section under Factor E). previously described, increased mining change (see the Climate Change and Therefore, we find that Trifolium activities and associated surface Drought section under Factor E for friscanum is threatened by the present disturbances are expected to occur in Astragalus hamiltonii). An increase in or threatened destruction, modification, and adjacent to the occupied habitat for nonnative species is expected to or curtailment of the species’ habitat or T. friscanum in the San Francisco and increase the frequency of fires in range, now and in the foreseeable Blue Mountains (see Mining, above), T. friscanum’s habitat. Therefore, we future, based on impacts from mining consequently encouraging B. tectorum determine that nonnative invasive activities and nonnative invasive to expand into the species’ habitat. species are a threat to two of five species. Invasions of annual nonnative populations of T. frsicanum and the species, such as Bromus tectorum, are majority of individuals now, and may Factor B. Overutilization for well documented to contribute to impact all populations in the Commercial, Recreational, Scientific, or increased fire frequencies (Brooks and foreseeable future when evaluated Educational Purposes Pyke 2002, p. 5; Grace et al. 2002, p. 43; cumulatively with mining activities Trifolium friscanum is not a plant of Brooks et al. 2003, pp. 4, 13, 15). The (and associated surface disturbances), horticultural interest. We are not aware risk of fire is expected to increase from climate change, and fire. of any overutilization or collection of T. 46 to 100 percent when the cover of Summary of Factor A friscanum. Therefore, overutilization for B. tectorum increases from 12 to 45 commercial, recreational, scientific, or percent or more (Link et al. 2006, p. At this time, based on best available educational purposes does not appear to 116). In the absence of exotic species, it information, we do not believe that pose a significant threat to the species is generally estimated that fire return grazing or recreational activities now nor is it likely to become a threat intervals in xeric sagebrush significantly threaten Trifolium in the foreseeable future. communities range from 100 to 350 friscanum now or in the foreseeable years (Baker 2006, p. 181). In some areas future. However, we determine that Factor C. Disease or Predation of the Great Basin (Snake River Plain), mining and nonnative invasive species Disease and herbivory on the species fire return intervals due to B. tectorum are threats to T. friscanum. are unknown. We do not have any invasion are now between 3 and 5 years Mining activities impacted Trifolium information indicating that disease is (Whisenant 1990, p. 4). Most plant friscanum habitat in the past and impacting Trifolium friscanum. We also species occurring within a sagebrush continue to be a threat to the species do not have any information indicating ecosystem are not expected to be and its habitat throughout large portions that herbivory is occurring from adapted to frequent fires, as evidenced of its range. Two of the five populations livestock (see the Livestock Grazing in the lack of evolutionary adaptations and the majority of individuals are section under Factor A), wildlife, or found in other shrub-dominated fire- located on lands with an extensive insects (Kass 1992c, p. 10; Evenden adapted ecosystems like chaparral. history of precious metal mining; 1998, entire; Evenden 1999, entire; Examples of such adaptation would ongoing exploration activities indicate Miller 2010a, p. 1; Miller 2010c, entire; include re-sprouting and heat- that precious metal mining is likely to Roth 2010a, entire). Thus, we do not stimulated seed germination (Baker, in threaten the species in the foreseeable consider disease or predation to be press, p. 17). future. The main threat to the majority threats to this species. In the absence of annual nonnative of T. friscanum plants is gravel mining species, T. friscanum grows in sparsely (Table 6). Three of the five populations Factor D. The Inadequacy of Existing vegetated communities that are unlikely are located in the vicinity of gravel pits Regulatory Mechanisms to carry fires (see Habitat section). Thus, that are mined for road and landscaping There are no endangered species laws T. friscanum is unlikely to be adapted gravel. The three populations located in protecting plants on private, State, or to fire and, therefore, unlikely to persist the vicinity of gravel mines contain the Tribal lands in Utah. The majority of through a fire. Therefore, the potential majority of plants and may be mined for individual plants are located on SITLA

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or private lands (Table 5). Trifolium we find that the inadequacy of existing size an intrinsic vulnerability to friscanum is listed as a bureau-sensitive mechanisms to regulate mining Trifolium friscanum, which may not plant for the BLM. Limited policy-level activities on private and State lands is rise to the level of a threat on its own. protection by the BLM is afforded a threat to three of five populations and However, the small population sizes rise through the Special Status Species the majority of individuals, and thus to to the level of a threat because of the Management Policy Manual # 6840, T. friscanum now and into the combined effects of having only five which forms the basis for special status foreseeable future. highly localized small populations with species management on BLM lands the effects of global climate change (see Factor E. Other Natural or Manmade (BLM 2008e, entire). The two sites on below) and the potential for stochastic Factors Affecting Its Continued USFS lands are located within the extinction events such as mining, and Existence Desert Experimental Range in the fire induced by invasive species (see Tunnel Springs Mountains (Tunnel Natural and manmade threats to Factor A). Therefore, we consider small Springs population) and appear to be Trifolium friscanum’s survival include: localized population size, in secure, although the population has not (1) Small population size and (2) combination with mining, invasive been visited since 1992 (Kass 1992c, p. climate change and drought. species, and climate change, to be a 11; Evenden 1998, Appendix C; (1) Small Population Size threat to the species now and in the Evenden 1999, p. 3). foreseeable future. This species is predominantly located General potential impacts of small on private or SITLA lands (Table 5), population sizes in plants are discussed (2) Climate Change and Drought where it is threatened by mining-related above in the Small Population Size Potential impacts of climate change activities (see Factor A). There are section under Factor E for Astragalus and drought to the geographic area are limited regulatory mechanisms in place hamiltonii. characterized in the Climate Change and that may protect Trifolium friscanum As previously discussed (see Drought section under Factor E for from mining on private or State lands. Distribution and Population Status, Astragalus hamiltonii. As discussed in As described under Eriogonum above), the entire species’ range is the Small Population Size section soredium and Lepidium ostleri, Factor restricted to highly specialized habitat above, Trifolium friscanum has a D, State environmental impact niches, distributed in 5 populations limited distribution and populations are assessments are required for large (and 9 sites) with a total population localized and small. In addition, these mining operations for all mineral estimate of 13,000 plants. Four of the 9 populations are restricted to very exploration, development, and sites contain 500 or fewer individuals specific soil types. Global climate extraction, including gravel pits and (Table 5). Only a fraction of the entire change exacerbates the risk of extinction precious metal mining (UDOGM 2010b, species’ range is occupied habitat. The for species that are already vulnerable p.1; Baker 2010, pers. comm.). T. majority of plants are located in two due to low population numbers and friscanum is not State listed, but it is on populations containing four sites of restricted habitat requirements (see the BLM sensitive species list. If occupied habitat, ranging from an Climate Change and Drought, Factor E UDOGM is made aware of impacts to estimated 1 ac (0.4 ha) to a maximum for Astragalus hamiltonii, above). these species, they could consider of 12 ac (5 ha) (Darnall et al. 2010, Predicted changes in climatic minimizing and mitigating impacts; entire; Miller 2010g, Appendix B). conditions include increases in however, there is no requirement to Despite the overall lack of information temperature, decreases in rainfall, and address species that are not federally on the population ecology of Trifolium increases in atmospheric carbon dioxide listed in the mine permitting process friscanum, we know that small in the American Southwest (Walther et (Baker 2010, pers. comm.). populations are at an increased risk of al. 2002, p. 389; IPCC 2007, p. 48; Karl The existing mining activities (see extinction due to the potential for et al. 2009, p. 129). Although we have Factor A, Mining) are under the 5-ac (2- inbreeding depression, loss of genetic no information on how Trifolium ha) regulatory threshold and, therefore, diversity, and lower sexual friscanum will respond to effects related not subject to permitting laws (Munson reproduction rates (Ellstrand and Elam to climate change, persistent or 2010, pers. comm.). A few of the gravel 1993, entire; Wilcock and Neiland 2002, prolonged drought conditions are likely mine pits almost exceed the 5-ac (2-ha) p. 275). No information is available on to reduce the frequency and duration of limit, and the operators may need to the population genetics, pollination, or flowering and germination events, lower apply for permits (Munson 2010, pers. reproductive effort and success of T. the recruitment of individual plants, comm.); however, they also could friscanum. However, the small areas of compromise the viability of choose to begin new gravel pits, or occupation and the narrow overall range populations, and impact pollinator reclaim portions of the existing pits to of the species make it highly susceptible availability (Tilman and El Haddi 1992, remain below the 5-ac (2-ha) limit to stochastic extinction events and the p. 263; Harrison 2001, p. 78). The (Munson 2010, pers. comm.). effects of inbreeding depression. smallest change in environmental In summary, the existing regulatory Mining or a single random event, such factors, especially precipitation, plays a mechanisms are not adequate to protect as a wildfire from invasive species (see decisive role in plant survival in arid T. friscanum from becoming threatened Factor A, Nonnative Invasive Species), regions (Herbel et al. 1972, p. 1084). or endangered by precious metal or could extirpate an entire or at least a Drought conditions led to a noticeable gravel mining on SITLA and private substantial portion of a population, decline in survival, vigor, and lands. The active gravel pits are below given the small areas of occupied reproductive output of other rare and the 5-ac (2-ha) threshold that would habitat. Species with limited ranges and endangered plants in the Southwest automatically trigger regulatory restricted habitat requirements also are during the drought years of 2001 environmental impact assessments. more vulnerable to the effects of global through 2004 (Anderton 2002, p. 1; Van Even if an environmental impact climate change (see Climate Change and Buren and Harper 2002, p. 3; Van Buren assessment is completed for any of the Drought, below) (IPCC 2002, p. 22; Jump and Harper 2004, entire; Hughes 2005, mines, the existing mining laws only and Penuelas 2005, p. 1016; Machinski entire; Clark and Clark 2007, p. 6; Roth recommend, and do not mandate, the et al. 2006, p. 226; Krause 2010, p. 79). 2008a, entire; Roth 2008b, pp. 3–4). species’ protection or mitigation. Thus, Overall, we consider small population Similar responses are anticipated to

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adversely affect the long-term Summary of Factor E species experts and other Federal and persistence of T. friscanum. We assessed the potential risks of State agencies. This status review identified threats Climate change is expected to small population size, climate change, to the species attributable to Factors A, increase levels of carbon dioxide and drought to Trifolium friscanum D, and E. The primary threat to the (Walther et al. 2002, p. 389; IPCC 2007, populations. T. friscanum has a highly species is habitat destruction from restricted distribution and is known p. 48; Karl et al. 2009, p. 129). Elevated precious metal and gravel mining on from five small, localized populations. levels of carbon dioxide lead to private and SITLA lands (Factor A). The Even in the absence of information on increased invasive annual plant largest populations containing the genetic diversity, inbreeding depression, biomass, invasive seed production, and majority of Trifolium friscanum plants and reproductive effort, a random pest outbreaks (Smith et al. 2000, p. 80– are located on private lands with active 81; IPCC 2002, pp. 18, 32; Ziska et al. stochastic event could impact a mining claims. These populations were 2005, p. 1328), and will put additional significant portion of a population. likely impacted by historical precious stressors on rare plants already suffering Small populations that are restricted by metal mining. Another population is from the effects of elevated temperatures habitat requirements are also more located on SITLA lands in the and drought. vulnerable to the effects of climate immediate vicinity of a gravel pit. We change, such as prolonged droughts and The actual extent to which climate expect an increase in precious metal increased fire frequencies. change itself will impact Trifolium and gravel mining in the foreseeable While naturally occurring droughts future, with the associated loss and friscanum is unclear, mostly because we are not likely to impact the long-term do not have long-term demographic fragmentation of T. friscanum persistence of the species, an increase in populations. information that allows us to predict the periodic prolonged droughts due to species’ response to changes in Bromus tectorum occurs in the climate change is likely to impact the vicinity of the two largest populations of environmental conditions, including species across its entire range in the prolonged drought. However, as the five known Trifolium friscanum future. Global climate change, populations. It is a highly invasive previously described, the species is particularly when assessed species and is expected to increase in threatened by mining activities (see cumulatively with small population size areas where surface disturbance such as Mining, Factor A, above), which will and threats from mining activities, is mining occurs. As previously discussed, likely result in the loss of large numbers expected to increase the density of the species occurs in the vicinity of of individuals or even entire invasive annual grasses, which are gravel and precious metal mines. Mines populations. Increased surface already present in the habitat of inherently cause surface disturbances disturbances associated with mining Trifolium friscanum within the from excavation activities and the activities also will likely increase the populations that contain the majority of construction of roads and other extent and densities of nonnative the plants (see Factor A). Increased infrastructure. Global climate change is invasive species and, with these, the nonnative species in the habitat of expected to increase drought conditions frequencies of fires (see Nonnative T. friscanum can increase fire frequency in the Southwest and increase the Invasive Species, Factor A, above). The and severity. Because T. friscanum is spread of nonnative invasive species. cumulative effects of the potential not likely adapted to persist through The biggest concern associated with the reduction in population numbers and fires, wildfires can have a significant increase in invasive species is the threat habitat loss (of already small impact on these small populations. of increased wildfire (Factor A), populations) associated with mining Although small population size and particularly when considering the small and increased invasive species (and fire) climate change make the species population sizes and small occupied are likely to increase the risk of the intrinsically more vulnerable, we are habitat acreages associated with the species being impacted by changes in uncertain whether they would rise to species. climate. the level of threat by themselves. The magnitude of the biological However, when combined with the In summary, we find it difficult to threats posed by the small population threats listed under Factor A, we believe size and limited species range are not analyze the potential effects of global that small population size is likely to well understood due to the lack of climate change on Trifolium friscanum rise to the level of threat in the information available on the ecology of in the absence of demographic trend foreseeable future. At this time, we are Trifolium friscanum. Future studies data for the species which would allow uncertain of the degree to which climate may provide us with a more thorough us to analyze how the species responds change constitutes a threat to the understanding of threats posed by to climate change through time. species. pollinator limitation, inbreeding However, the cumulative effects posed depression, and the potential lack of Finding by the threats of mining, nonnative genetic diversity over the species’ range. species and small population size may As required by the ESA, we Even without detailed knowledge on exacerbate the effects of climate change conducted a review of the status of the how small population sizes are on T. friscanum in the future. However, species and considered the five factors impacting the biology and ecology of at this time, we believe that the state of in assessing whether Trifolium T. friscanum, the small areas of knowledge concerning the localized friscanum is endangered or threatened occupied habitat make the species effects of climate change within the throughout all or a significant portion of highly vulnerable to habitat destruction habitat occupied by T. friscanum is too its range. We examined the best through mining-related activities as well speculative to determine whether scientific and commercial information as random extinction events, including climate change is a threat to this species available regarding the past, present, fires and the effects of global climate in the foreseeable future. We will and future threats faced by T. friscanum. change (Factor E). continue to assess the potential of We reviewed the petition, information The existing regulatory mechanisms climate change to threaten the species as available in our files, as well as other are not adequate to protect Trifolium better scientific information becomes available published and unpublished friscanum from the primary threat of available. information, and we consulted with mining, particularly because the

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majority of individuals are located on habitat, the inadequacy of existing and the threat of increased mining private lands (Factor D). The regulatory mechanisms, and other activities. inadequacy of regulatory mechanisms natural or manmade factors affecting its Therefore, we consider the threats (Factor D) on private and State lands, continued existence. These threats are that Trifolium friscanum faces to be combined with the high economic and ongoing and, in some cases (such as moderate in magnitude because the commercial value of much of the nonnative species), are considered major threats (mining, nonnative substrate this species depends on, poses irreversible because large-scale invasive species, small population size, a serious threat to T. friscanum. A large invasions cannot be recovered to a plus inadequacy of existing regulatory portion of the species’ individuals have native functioning ecosystem. Our mechanisms), while serious and the potential to be extirpated by mining rationale for assigning T. friscanum an occurring rangewide, do not collectively activities in the foreseeable future LPN of 8 is outlined below. rise to the level of high magnitude. (Factor A; Table 6). Ongoing mining in Under the Service’s LPN guidance, Under our LPN guidance, the second the habitat of T. friscanum has the the magnitude of threat is the first criterion we consider in assigning a potential to extirpate three of the five criterion we look at when establishing a listing priority is the immediacy of populations in the foreseeable future, listing priority. The guidance indicates threats. This criterion is intended to two of which contain the majority of that species with the highest magnitude ensure that the species facing actual, plants (Factor A, Table 5). of threat are those species facing the identifiable threats are given priority On the basis of the best scientific and greatest threats to their continued over those for which threats are only commercial information available, we existence. These species receive the potential or those that are intrinsically find that the petitioned action to list highest listing priority. We consider the vulnerable but are not known to be Trifolium friscanum as endangered or magnitude of Factor A moderate. While presently facing such threats. We threatened is warranted. We will make current mining activities are ongoing in consider all of the threats to be a determination on the status of the the habitat of T. friscanum, they are not imminent because we have factual species as endangered or threatened ongoing in the immediate vicinity of information that the threats are when we do a proposed listing any of the populations. Mining in the identifiable and that the species is determination. However, as explained habitat of these populations is expected currently facing them in many portions in more detail below, an immediate to increase the density of B. tectorum, of its range. These actual, identifiable proposal of a regulation implementing thereby facilitating the spread of fire. B. threats are covered in greater detail in this action is precluded by higher tectorum occurs in two of the five Factors A, D, and E of this finding. The priority listing actions, and progress is populations, which also contain the majority of threats are ongoing and, being made to add or remove qualified largest number of individuals. We have therefore, imminent, although mining is species from the Lists of Endangered no documentation on the density of B. currently ongoing in the habitat of only and Threatened Wildlife and Plants. tectorum within these populations but one of the populations. In addition to We reviewed the available we are expecting it to increase in the their current existence, we expect these information to determine if the existing future. threats, except for inadequate and foreseeable threats render the We consider the magnitude of Factor regulations, to continue and likely species at risk of extinction now such D to be moderate. Three of the five intensify in the foreseeable future. that issuing an emergency regulation populations are located on private or The third criterion in our LPN temporarily listing the species under SITLA lands. The majority of guidance is intended to devote section 4(b)(7) of the ESA is warranted. individuals are located on private lands resources to those species representing We determined that issuing an with active patented mining claims. highly distinctive or isolated gene pools emergency regulation temporarily Existing regulatory mechanisms do not as reflected by taxonomy. Trifolium listing the species is not warranted at adequately protect Trifolium friscanum friscanum is a valid taxon at the species this time because there is no emergency from the impacts of mining on private level and, therefore, receives a higher posing a significant risk to the well lands. The majority of individuals (3 priority than subspecies, but a lower being of Trifolium friscanum. We do not populations) have the potential to be priority than species in a monotypic believe that any of the potential threats impacted by mining in the future. genus. Therefore, we assigned T. are of such great immediacy and However, because none of the friscanum an LPN of 8. severity that would threaten all of the populations are directly impacted by We will continue to monitor the known populations with the imminent current mining levels on SITLA or threats to Trifolium friscanum and the risk of extinction. However, if at any private lands, we consider threats under species’ status on an annual basis, and, time we determine that issuing an Factor D to be moderate at this time. should the magnitude or the imminence emergency regulation temporarily We consider the magnitude of Factor of the threats change, we will revisit our listing Trifolium friscanum is E moderate, because, although small assessment of the LPN. warranted, we will initiate this action at population size and climate change While we conclude that listing that time. make the species intrinsically more Trifolium friscanum is warranted, an vulnerable, we are uncertain of whether immediate proposal to list this species Listing Priority Number they would rise to the level of threat by is precluded by other higher priority Pursuant to our guidelines, titled themselves. However, when collectively listings, which we address in the ‘‘Endangered and Threatened Species analyzed with the threats listed under Preclusion and Expeditious Progress Listing and Recovery Priority Factor A, they may rise to the level of section below. Because we have Guidelines’’ (described above), we have threat in the foreseeable future. assigned T. friscanum an LPN of 8, work assigned Trifolium friscanum a Listing Although we are uncertain about the on a proposed listing determination for Priority Number (LPN) of 8, based on direct impacts of global climate change T. friscanum is precluded by work on our finding that the species faces threats on Trifolium friscanum, we expect the higher priority listing actions with that are of moderate magnitude and are species to respond negatively to absolute statutory, court-ordered, or imminent. These threats include the changed environmental conditions and court-approved deadlines and final present or threatened destruction, drought, especially when combined listing determinations for those species modification, or curtailment of its with the effects of small population size that were proposed for listing with

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funds from FY 2010. This work includes We cannot spend more than is Congress also recognized that the all the actions listed in the tables below appropriated for the Listing Program availability of resources was the key under expeditious progress. without violating the Anti-Deficiency element in deciding, when making a Act (see 31 U.S.C. 1341(a)(1)(A)). In 12-month petition finding, whether we Preclusion and Expeditious Progress addition, in FY 1998 and for each FY would prepare and issue a listing Preclusion is a function of the listing since then, Congress has placed a proposal or instead make a ‘‘warranted priority of a species in relation to the statutory cap on funds which may be but precluded’’ finding for a given resources that are available and expended for the Listing Program, equal species. The Conference Report competing demands for those resources. to the amount expressly appropriated accompanying Public Law 97–304, Thus, in any given fiscal year, multiple for that purpose in that FY. This cap which established the current statutory factors dictate whether it will be was designed to prevent funds deadlines and the warranted-but- possible to undertake work on a appropriated for other functions under precluded finding, states (in a proposed listing regulation or whether the ESA (for example, recovery funds discussion on 90-day petition findings promulgation of such a proposal is for removing species from the Lists), or that by its own terms also covers warranted but precluded by higher for other Service programs, from being 12-month findings) that the deadlines priority listing actions. used for Listing Program actions (see were ‘‘not intended to allow the The resources available for listing House Report 105–163, 105th Congress, Secretary to delay commencing the actions are determined through the 1st Session, July 1, 1997). rulemaking process for any reason other annual Congressional appropriations Recognizing that designation of than that the existence of pending or process. The appropriation for the critical habitat for species already listed imminent proposals to list species Services’ Listing Program is available to would consume most of the overall subject to a greater degree of threat support work involving the following Listing Program appropriation, Congress would make allocation of resources to listing actions: Proposed and final also put a critical habitat subcap in such a petition [that is, for a lower- listing rules; 90-day and 12-month place in FY 2002 and has retained it ranking species] unwise.’’ findings on petitions to add species to each subsequent year to ensure that In FY 2010, expeditious progress is the Lists of Endangered and Threatened some funds are available for other work that amount of work that can be Wildlife and Plants (Lists) or to change in the Listing Program: ‘‘The critical achieved with $10,471,000, which is the amount of money that Congress the status of a species from threatened habitat designation subcap will ensure appropriated for the Listing Program to endangered; annual determinations that some funding is available to (that is, the portion of the Listing on prior ‘‘warranted but precluded’’ address other listing activities’’ (House Program funding not related to critical petition findings as required under Report No. 107–103, 107th Congress, 1st habitat designations for species that are section 4(b)(3)(C)(i) of the ESA; critical Session, June 19, 2001). In FY 2002 and already listed). However, these funds habitat petition findings; proposed and each year until FY 2006, the Service has are not enough to fully fund all our final rules designating critical habitat; had to use virtually the entire critical court-ordered and statutory listing and litigation-related, administrative, habitat subcap to address court- actions in FY 2010, so we are using and program-management functions mandated designations of critical $1,114,417 of our critical habitat subcap habitat, and consequently none of the (including preparing and allocating funds in order to work on all of our budgets, responding to Congressional critical habitat subcap funds have been required petition findings and listing and public inquiries, and conducting available for other listing activities. In determinations. This brings the total public outreach regarding listing and FY 2007, we were able to use some of amount of funds we have for listing critical habitat). the critical habitat subcap funds to fund actions in FY 2010 to $11,585,417. The work involved in preparing proposed listing determinations for Starting in FY 2010, we also are using various listing documents can be high-priority candidate species. In FY our funds to work on listing actions for extensive and may include, but is not 2009, while we were unable to use any foreign species, because that work was limited to: Gathering and assessing the of the critical habitat subcap funds to transferred from the Division of best scientific and commercial data fund proposed listing determinations, Scientific Authority, International available and conducting analyses used we did use some of this money to fund Affairs Program, to the Endangered as the basis for our decisions; writing the critical habitat portion of some Species Program. Our process is to make and publishing documents; and proposed listing determinations so that our determinations of preclusion on a obtaining, reviewing, and evaluating the proposed listing determination and nationwide basis to ensure that the public comments and peer review proposed critical habitat designation species most in need of listing will be comments on proposed rules and could be combined into one rule, addressed first and also because we incorporating relevant information into thereby being more efficient in our allocate our listing budget on a final rules. The number of listing work. In FY 2010, we are using some of nationwide basis. The $11,585,417 is actions that we can undertake in a given the critical habitat subcap funds to fund being used to fund work in the year also is influenced by the actions with statutory deadlines. following categories: Compliance with complexity of those listing actions; that Thus, through the listing cap, the court orders and court-approved is, more complex actions generally are critical habitat subcap, and the amount settlement agreements requiring that more costly. For example, during the of funds needed to address court- petition findings or listing past several years the cost (excluding mandated critical habitat designations, determinations be completed by a publication costs) for preparing a Congress and the courts have in effect specific date; section 4 (of the ESA) 12-month finding, without a proposed determined the amount of money listing actions with absolute statutory rule, has ranged from approximately available for other listing activities. deadlines; essential litigation-related, $11,000 for one species with a restricted Therefore, the funds in the listing cap, administrative, and listing program- range and involving a relatively other than those needed to address management functions; and high- uncomplicated analysis to $305,000 for court-mandated critical habitat for priority listing actions for some of our another species that is wide ranging and already listed species, set the limits on candidate species. The allocations for involving a complex analysis. our petition finding determinations. each specific listing action are identified

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in the Service’s FY 2010 Allocation funding to work on a proposed listing and T. friscanum are species, we Table (part of our administrative determination. As we work on proposed assigned an LPN of 8 to each. Therefore, record). and final listing rules for these 40 work on a proposed listing In FY 2007, we had more than 120 candidates, we are applying the ranking determination for E. soredium, L. ostleri species with an LPN of 2, based on our criteria to the next group of candidates and T. friscanum is precluded by work September 21, 1983, guidance for with an LPN of 2 and 3 to determine the on higher priority candidate species assigning an LPN for each candidate next set of highest priority candidate (i.e., species with LPN of 7); listing species (48 FR 43098). Using this species. actions with absolute statutory, court guidance, we assign each candidate an To be more efficient in our listing ordered, or court-approved deadlines; LPN of 1 to 12, depending on the process, as we work on proposed rules and final listing determinations for magnitude of threats (high vs. moderate for these species in the next several those species that were proposed for to low), immediacy of threats (imminent years, we are preparing multi-species listing with funds from previous FYs. or nonimminent), and taxonomic status proposals when appropriate, and these This work includes all the actions listed of the species (in order of priority: may include species with lower priority in the tables below under expeditious monotypic genus (a species that is the if they overlap geographically or have progress. sole member of a genus); species; or part the same threats as a species with an As explained above, a determination of a species (subspecies, DPS, or LPN of 2. In addition, available staff that listing is warranted but precluded significant portion of the range)). The resources also are a factor in also must demonstrate that expeditious lower the listing priority number, the determining high-priority species progress is being made to add or remove higher the listing priority (that is, a provided with funding. Finally, qualified species to and from the Lists species with an LPN of 1 would have proposed rules for reclassification of of Endangered and Threatened Wildlife the highest listing priority). Because of threatened species to endangered are and Plants. (Although we do not discuss the large number of high-priority lower priority, since as listed species, it in detail here, we also are making species, we further ranked the candidate they are already afforded the protection expeditious progress in removing species with an LPN of 2 by using the of the ESA and implementing species from the Lists under the following extinction-risk type criteria: regulations. Recovery program, which is funded by International Union for the We assigned Eriogonum soredium, a separate line item in the budget of the Conservation of Nature and Natural Lepidium ostleri and Trifolium Endangered Species Program. As Resources (IUCN) Red list status/rank, friscanum an LPN of 8. This is based on explained above in our description of Heritage rank (provided by our finding that the species face the statutory cap on Listing Program NatureServe), Heritage threat rank immediate and moderate magnitude funds, the Recovery Program funds and (provided by NatureServe), and species threats from the present or threatened actions supported by them cannot be currently with fewer than 50 destruction, modification or curtailment considered in determining expeditious individuals, or 4 or fewer populations. of its habitat; the inadequacy of existing progress made in the Listing Program.) Those species with the highest IUCN regulatory mechanisms; and other As with our ‘‘precluded’’ finding, rank (critically endangered), the highest natural or man-made factors affecting expeditious progress in adding qualified Heritage rank (G1), the highest Heritage their continued existence. These threats species to the Lists is a function of the threat rank (substantial, imminent are ongoing and, in some cases (e.g., resources available and the competing threats), and currently with fewer than nonnative species), considered demands for those funds. Given that 50 individuals, or fewer than 4 irreversible. Under our 1983 Guidelines, limitation, we find that we are making populations, comprised a group of a ‘‘species’’ facing imminent moderate- progress in FY 2010 in the Listing approximately 40 candidate species magnitude threats is assigned an LPN of Program. This progress included (‘‘Top 40’’). These 40 candidate species 7, 8, or 9 depending on its taxonomic preparing and publishing the following have had the highest priority to receive status. Because E. soredium, L. ostleri determinations:

FY 2010 COMPLETED LISTING ACTIONS

Federal Register Publication date Title Actions pages

10/08/2009 ...... Listing Lepidium papilliferum (Slickspot Peppergrass) as a Threat- Final Listing, Threatened ...... 74 FR 52013–52064. ened Species Throughout Its Range. 10/27/2009 ...... 90-day Finding on a Petition To List the American Dipper in the Notice of 90-day Petition Find- 74 FR 55177–55180. Black Hills of SD as Threatened or Endangered. ing, Not substantial. 10/28/2009 ...... Status Review of Arctic Grayling (Thymallus arcticus) in the Notice of Intent to Conduct Sta- 74 FR 55524–55525. Upper Missouri River System. tus Review. 11/03/2009 ...... Listing the British Columbia DPS of the Queen Charlotte Gos- Proposed Listing Threatened ..... 74 FR 56757–56770. hawk Under the ESA: Proposed rule. 11/03/2009 ...... Listing the Salmon-Crested Cockatoo as Threatened Throughout Proposed Listing Threatened ..... 74 FR 56770–56791. Its Range with Special Rule. 11/23/2009 ...... Status Review of Gunnison sage-grouse (Centrocercus minimus) Notice of Intent to Conduct Sta- 74 FR 61100–61102. tus Review. 12/03/2009 ...... 12-Month Finding on a Petition to List the Black-tailed Prairie Dog Notice of 12-month petition find- 74 FR 63343–63366. as Threatened or Endangered. ing, Not warranted. 12/03/2009 ...... 90-Day Finding on a Petition to List Sprague’s Pipit as Threat- Notice of 90-day Petition Find- 74 FR 63337–63343. ened or Endangered. ing, Substantial. 12/15/2009 ...... 90-Day Finding on Petitions To List Nine Species of Mussels Notice of 90-day Petition Find- 74 FR 66260–66271. From TX as Threatened or Endangered With Critical Habitat. ing, Substantial. 12/16/2009 ...... Partial 90-Day Finding on a Petition to List 475 Species in the Notice of 90-day Petition Find- 74 FR 66865–66905. Southwestern U.S. as Threatened or Endangered With Critical ing, Not substantial & Sub- Habitat. stantial.

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FY 2010 COMPLETED LISTING ACTIONS—Continued

Federal Register Publication date Title Actions pages

12/17/2009 ...... 12-month Finding on a Petition To Change the Final Listing of the Notice of 12-month petition find- 74 FR 66937–66950. DPS of the Canada Lynx To Include NM. ing, Warranted but precluded. 01/05/2010 ...... Listing Foreign Bird Species in Peru & Bolivia as Endangered Proposed Listing, Endangered ... 75 FR 605–649. Throughout Their Range. 01/05/2010 ...... Listing Six Foreign Birds as Endangered Throughout Their Range Proposed Listing, Endangered ... 75 FR 286–310. 01/05/2010 ...... Withdrawal of Proposed Rule to List Cook’s Petrel ...... Proposed rule, withdrawal ...... 75 FR 310–316. 01/05/2010 ...... Final Rule to List the Galapagos Petrel & Heinroth’s Shearwater Final Listing, Threatened ...... 75 FR 235–250. as Threatened Throughout Their Ranges. 01/20/2010 ...... Initiation of Status Review for Agave eggersiana & Solanum Notice of Intent to Conduct Sta- 75 FR 3190–3191. conocarpum. tus Review. 02/09/2010 ...... 12-month Finding on a Petition to List the American Pika as Notice of 12-month petition find- 75 FR 6437–6471. Threatened or Endangered. ing, Not warranted. 02/25/2010 ...... 12-Month Finding on a Petition To List the Sonoran Desert Popu- Notice of 12-month petition find- 75 FR 8601–8621. lation of the Bald Eagle as a Threatened or Endangered DPS. ing, Not warranted. 02/25/2010 ...... Withdrawal of Proposed Rule To List the Southwestern Wash- Withdrawal of Proposed Rule to 75 FR 8621–8644. ington/Columbia River DPS of Coastal Cutthroat Trout List. (Oncorhynchus clarki clarki) as Threatened. 03/18/2010 ...... 90-Day Finding on a Petition to List the Berry Cave Salamander Notice of 90-day Petition Find- 75 FR 13068–13071. as Endangered. ing, Substantial. 03/23/2010 ...... 90-Day Finding on a Petition to List the Southern Hickorynut Notice of 90-day Petition Find- 75 FR 13717–13720. Mussel (Obovaria jacksoniana) as Endangered or Threatened. ing, Not substantial. 03/23/2010 ...... 90-Day Finding on a Petition to List the Striped Newt as Threat- Notice of 90-day Petition Find- 75 FR 13720–13726. ened. ing, Substantial. 03/23/2010 ...... 12-Month Findings for Petitions to List the Greater Sage-Grouse Notice of 12-month petition find- 75 FR 13910–14014. (Centrocercus urophasianus) as Threatened or Endangered. ing, Warranted but precluded. 03/31/2010 ...... 12-Month Finding on a Petition to List the Tucson Shovel-Nosed Notice of 12-month petition find- 75 FR 16050–16065. Snake (Chionactis occipitalis klauberi) as Threatened or En- ing, Warranted but precluded. dangered with Critical Habitat. 04/05/2010 ...... 90-Day Finding on a Petition To List Thorne’s Hairstreak Butterfly Notice of 90-day Petition Find- 75 FR 17062–17070. as or Endangered. ing, Substantial. 04/06/2010 ...... 12-month Finding on a Petition To List the Mountain Whitefish in Notice of 12-month petition find- 75 FR 17352–17363. the Big Lost River, ID, as Endangered or Threatened. ing, Not warranted. 04/06/2010 ...... 90-Day Finding on a Petition to List a Stonefly (Isoperla jewetti) Notice of 90-day Petition Find- 75 FR 17363–17367. and a Mayfly (Fallceon eatoni) as Threatened or Endangered ing, Not substantial. with Critical Habitat. 04/07/2010 ...... 12-Month Finding on a Petition to Reclassify the Delta Smelt Notice of 12-month petition find- 75 FR 17667–17680. From Threatened to Endangered Throughout Its Range. ing, Warranted but precluded. 04/13/2010 ...... Determination of Endangered Status for 48 Species on Kauai & Final Listing, Endangered ...... 75 FR 18959–19165. Designation of Critical Habitat. 04/15/2010 ...... Initiation of Status Review of the North American Wolverine in the Notice of Initiation of Status Re- 75 FR 19591–19592. Contiguous U.S. view. 04/15/2010 ...... 12-Month Finding on a Petition to List the Wyoming Pocket Go- Notice of 12-month petition find- 75 FR 19592–19607. pher as Endangered or Threatened with Critical Habitat. ing, Not warranted. 04/16/2010 ...... 90-Day Finding on a Petition to List a DPS of the Fisher in Its Notice of 90-day Petition Find- 75 FR 19925–19935. U.S. Northern Rocky Mountain Range as Endangered or ing, Substantial. Threatened with Critical Habitat. 04/20/2010 ...... Initiation of Status Review for Sacramento splittail (Pogonichthys Notice of Initiation of Status Re- 75 FR 20547–20548. macrolepidotus). view. 04/26/2010 ...... 90-Day Finding on a Petition to List the Harlequin Butterfly as En- Notice of 90-day Petition Find- 75 FR 21568–21571. dangered. ing, Substantial. 04/27/2010 ...... 12-Month Finding on a Petition to List Susan’s Purse-making Notice of 12-month petition find- 75 FR 22012–22025. Caddisfly (Ochrotrichia susanae) as Threatened or Endangered. ing, Not warranted. 04/27/2010 ...... 90-Day Finding on a Petition to List the Mohave Ground Squirrel Notice of 90-day Petition Find- 75 FR 22063–22070. as Endangered with Critical Habitat. ing, Substantial. 05/04/2010 ...... 90-Day Finding on a Petition to List Hermes Copper Butterfly as Notice of 90-day Petition Find- 75 FR 23654–23663. Threatened or Endangered. ing, Substantial. 06/01/2010 ...... 90-Day Finding on a Petition To List Castanea pumila var. Notice of 90-day Petition Find- 75 FR 30313–30318. ozarkensis. ing, Substantial. 06/01/2010 ...... 12-Month Finding on a Petition to List the White-tailed Prairie Notice of 12-month petition find- 75 FR 30338–30363. Dog as Endangered or Threatened. ing, Not warranted. 06/09/2010 ...... 90-Day Finding on a Petition To List van Rossem’s Gull-billed Notice of 90-day Petition Find- 75 FR 32728–32734. Tern as Endangered or Threatened. ing, Substantial.

Our expeditious progress also section of the table are being conducted under the ESA. Actions in the bottom includes work on listing actions that we under a deadline set by a court. Actions section of the table are high-priority funded in FY 2010 but have not yet in the middle section of the table are listing actions. These actions include been completed to date. These actions being conducted to meet statutory work primarily on species with an LPN are listed below. Actions in the top timelines, that is, timelines required of 2, and selection of these species is

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partially based on available staff same threats as the species with the and funding, as compared to preparing resources, and when appropriate, high priority. Including these species separate proposed rules for each of them include species with a lower priority if together in the same proposed rule in the future. they overlap geographically or have the results in considerable savings in time

ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED

Species Action

Actions Subject to Court Order/Settlement Agreement: 6 Birds from Eurasia ...... Final listing determination. Flat-tailed horned lizard ...... Final listing determination. Mountain plover ...... Final listing determination. 6 Birds from Peru ...... Proposed listing determination. Sacramento splittail ...... Proposed listing determination. Gunnison sage-grouse ...... 12-month petition finding. Wolverine ...... 12-month petition finding. Montana Arctic grayling ...... 12-month petition finding. Agave eggersiana ...... 12-month petition finding. Solanum conocarpum ...... 12-month petition finding. Mountain plover ...... 12-month petition finding. Thorne’s Hairstreak Butterfly ...... 12-month petition finding. Hermes copper butterfly ...... 12-month petition finding. Actions With Statutory Deadlines: Casey’s june beetle ...... Final listing determination. Georgia pigtoe, interrupted rocksnail, and rough hornsnail ...... Final listing determination. 2 Hawaiian damselflies ...... Final listing determination. African penguin ...... Final listing determination. 3 Foreign bird species (Andean flamingo, Chilean woodstar, St. Lucia forest thrush) ...... Final listing determination. 5 Penguin species ...... Final listing determination. Southern rockhopper penguin—Campbell Plateau population ...... Final listing determination. 5 Bird species from Colombia and Ecuador ...... Final listing determination. 7 Bird species from Brazil ...... Final listing determination. Queen Charlotte goshawk ...... Final listing determination. Salmon crested cockatoo ...... Proposed listing determination. Black-footed albatross ...... 12-month petition finding. Mount Charleston blue butterfly ...... 12-month petition finding. Least chub 1 ...... 12-month petition finding. Mojave fringe-toed lizard 1 ...... 12-month petition finding. Pygmy rabbit (rangewide) 1 ...... 12-month petition finding. Kokanee—Lake Sammamish population 1 ...... 12-month petition finding. Delta smelt (uplisting) ...... 12-month petition finding. Cactus ferruginous pygmy-owl 1 ...... 12-month petition finding. Northern leopard frog ...... 12-month petition finding. Tehachapi slender salamander ...... 12-month petition finding. Coqui Llanero ...... 12-month petition finding. White-sided jackrabbit ...... 12-month petition finding. Jemez Mountains salamander ...... 12-month petition finding. Dusky tree vole ...... 12-month petition finding. Eagle Lake trout 1 ...... 12-month petition finding. 29 of 206 species ...... 12-month petition finding. Desert tortoise—Sonoran population ...... 12-month petition finding. Gopher tortoise—eastern population ...... 12-month petition finding. Amargosa toad ...... 12-month petition finding. Pacific walrus ...... 12-month petition finding. Wrights marsh thistle ...... 12-month petition finding. 67 of 475 southwest species ...... 12-month petition finding. 9 Southwest mussel species ...... 12-month petition finding. 14 parrots (foreign species) ...... 12-month petition finding. Berry Cave salamander 1 ...... 12-month petition finding. Striped Newt 1 ...... 12-month petition finding. Fisher—Northern Rocky Mountain Range 1 ...... 12-month petition finding. Mohave Ground Squirrel 1 ...... 12-month petition finding. Puerto Rico Harlequin Butterfly ...... 12-month petition finding. Western gull-billed tern ...... 12-month petition finding. Ozark chinquapin (Castanea pumila var. ozarkensis) ...... 12-month petition finding. Southeastern population of snowy plover and wintering population of piping plover 1 ...... 90-day petition finding. Eagle Lake trout 1 ...... 90-day petition finding. Smooth-billed ani 1 ...... 90-day petition finding. Bay Springs salamander 1 ...... 90-day petition finding. 32 species of snails and slugs 1 ...... 90-day petition finding. Calopogon oklahomensis 1 ...... 90-day petition finding. White-bark pine ...... 90-day petition finding. 42 snail species (Nevada and Utah) ...... 90-day petition finding. HI yellow-faced bees ...... 90-day petition finding. Red knot roselaari subspecies ...... 90-day petition finding.

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ACTIONS FUNDED IN FY 2010 BUT NOT YET COMPLETED—Continued

Species Action

Honduran emerald ...... 90-day petition finding. Peary caribou ...... 90-day petition finding. Plains bison ...... 90-day petition finding. Giant Palouse earthworm ...... 90-day petition finding. Mexican gray wolf ...... 90-day petition finding. Spring Mountains checkerspot butterfly ...... 90-day petition finding. Spring pygmy sunfish ...... 90-day petition finding. San Francisco manzanita ...... 90-day petition finding. Bay skipper ...... 90-day petition finding. Unsilvered fritillary ...... 90-day petition finding. Texas kangaroo rat ...... 90-day petition finding. Spot-tailed earless lizard ...... 90-day petition finding. Eastern small-footed bat ...... 90-day petition finding. Northern long-eared bat ...... 90-day petition finding. Prairie chub ...... 90-day petition finding. 10 species of Great Basin butterfly ...... 90-day petition finding. 6 sand dune (scarab) beetles ...... 90-day petition finding. Golden-winged warbler ...... 90-day petition finding. Sand-verbena moth ...... 90-day petition finding. Aztec (beautiful) gilia ...... 90-day petition finding. Arapahoe snowfly ...... 90-day petition finding. High-Priority Listing Actions: 3 19 Oahu candidate species 3 (16 plants, 3 damselflies) (15 with LPN = 2, 3 with LPN = 3, 1 with Proposed listing. LPN = 9). 17 Maui-Nui candidate species 3 (14 plants, 3 tree snails) (12 with LPN = 2, 2 with LPN = 3, 3 with Proposed listing. LPN = 8). Sand dune lizard 3 (LPN = 2) ...... Proposed listing. 2 Arizona springsnails 3 (Pyrgulopsis bernadina (LPN = 2), Pyrgulopsis trivialis (LPN = 2) ...... Proposed listing. 2 New Mexico springsnails 3 (Pyrgulopsis chupaderae (LPN = 2), Pyrgulopsis thermalis (LPN = 11) Proposed listing. 2 mussels 3 (rayed bean (LPN = 2), snuffbox (No LPN) ...... Proposed listing. 2 mussels 3 (sheepnose (LPN = 2), spectaclecase (LPN = 4)) ...... Proposed listing. Ozark hellbender 2 (LPN = 3) ...... Proposed listing. Altamaha spinymussel 3 (LPN = 2) ...... Proposed listing. 5 southeast fish 3 (rush darter (LPN = 2), chucky madtom (LPN = 2), yellowcheek darter (LPN = 2), Proposed listing. Cumberland darter (LPN = 5), laurel dace (LPN = 5). 8 southeast mussels (southern kidneyshell (LPN = 2), round ebonyshell (LPN = 2), Alabama Proposed listing. pearlshell (LPN = 2), southern sandshell (LPN = 5), fuzzy pigtoe (LPN = 5), Choctaw bean (LPN = 5), narrow pigtoe (LPN = 5), & tapered pigtoe (LPN = 11)). 3 Colorado plants 3 (Pagosa skyrocket (Ipomopsis polyantha) (LPN = 2), Parchute beardtongue Proposed listing. (Penstemon debilis) (LPN = 2), Debeque phacelia (Phacelia submutica) (LPN = 8)). 2 Texas plants (Texas golden gladecress (Leavenworthia texana) (LPN = 2), Neches River rose Proposed listing. mallow (Hibiscus dasycalyx) (LPN = 5)). Florida bonneted bat (LPN = 2) ...... Proposed listing. Kittlitz’s murrelet (LPN = 2) ...... Proposed listing. 1 Funds for listing actions for these species were provided in previous FYs. 2 We funded a proposed rule for this subspecies with an LPN of 3 ahead of other species with LPN of 2, because the threats to the species were so imminent and of a high magnitude that we considered emergency listing if we were unable to fund work on a proposed listing rule in FY 2008. 3 Funds for these high-priority listing actions were provided in FY 2008 or 2009.

We have endeavored to make our finding. We will continue to monitor the References Cited listing actions as efficient and timely as status of these species as new possible, given the requirements of the information becomes available. This A complete list of references cited is relevant law and regulations, and review will determine if a change in available on the Internet at http:// constraints relating to workload and status is warranted, including the need www.regulations.gov or upon request personnel. We are continually to make prompt use of emergency listing from the Utah Ecological Services Field Office (see ADDRESSES section). considering ways to streamline procedures. processes or achieve economies of scale, We intend that any proposed listing Authors such as by batching related actions action for Eriogonum soredium, together. Given our limited budget for The primary authors of this notice are implementing section 4 of the ESA, Lepidium ostleri, and Trifolium the staff members of the Utah Ecological these actions described above friscanum will be as accurate as Services Field Office. collectively constitute expeditious possible. Therefore, we will continue to progress. accept additional information and Authority comments from all concerned Eriogonum soredium, Lepidium The authority for this section is governmental agencies, the scientific ostleri, and Trifolium friscanum will be section 4 of the Endangered Species Act community, industry, or any other added to the list of candidate species of 1973, as amended (16 U.S.C. 1531 et upon publication of this 12-month interested party concerning this finding. seq.).

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Dated: February 2, 2011. Rowan W. Gould, Acting Director, Fish and Wildlife Service. [FR Doc. 2011–3675 Filed 2–22–11; 8:45 am] BILLING CODE 4310–55–P

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Reader Aids Federal Register Vol. 76, No. 36 Wednesday, February 23, 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 1023...... 7685 Executive orders and proclamations 741–6000 9...... 6311 Proposed Rules: The United States Government Manual 741–6000 11...... 6311 40...... 8314 73 ...... 6085, 6086, 6087, 6200 Other Services 12...... 6311 430...... 9696 Electronic and on-line services (voice) 741–6020 3 CFR 431...... 9696 Privacy Act Compilation 741–6064 1021...... 9981 Public Laws Update Service (numbers, dates, etc.) 741–6043 Proclamations: TTY for the deaf-and-hard-of-hearing 741–6086 8625...... 6305 8626...... 6307 12 CFR 8627...... 6521 21...... 6687 ELECTRONIC RESEARCH Executive Orders: 41...... 6687 World Wide Web 13501 (revoked by 225...... 8265 Full text of the daily Federal Register, CFR and other publications 13564) ...... 6309 907...... 7479 is located at: www.fdsys.gov. 13564...... 6309 1213...... 7479 Federal Register information and research tools, including Public 13565...... 7681 Proposed Rules: Inspection List, indexes, and links to GPO Access are located at: Administrative Orders: 225...... 7731 www.ofr.gov. Memorandums: 330...... 7740 E-mail Memorandum of 1228...... 6702 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is February 7, 2011 ...... 7477 13 CFR an open e-mail service that provides subscribers with a digital Memorandum of form of the Federal Register Table of Contents. The digital form February 14, 2011 ...... 9493 115...... 9962 of the Federal Register Table of Contents includes HTML and 5 CFR 120...... 7098, 9213 PDF links to the full text of each document. 121 ...... 5680, 7098, 8222 532...... 9639, 9640 To join or leave, go to http://listserv.access.gpo.gov and select 124...... 5680, 8222 831...... 9939 125...... 5680 Online mailing list archives, FEDREGTOC-L, Join or leave the list 841...... 9939 (or change settings); then follow the instructions. 126...... 5680 Proposed Rules: 134...... 5680 PENS (Public Law Electronic Notification Service) is an e-mail 532...... 9694 service that notifies subscribers of recently enacted laws. Proposed Rules: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 7 CFR Ch. III...... 5501, 6088 and select Join or leave the list (or change settings); then follow 2...... 9641 14 CFR the instructions. 301...... 5679 FEDREGTOC-L and PENS are mailing lists only. We cannot 319...... 8603 1...... 9495 respond to specific inquiries. 915...... 7095 21...... 8892 Reference questions. Send questions and comments about the 984...... 8871 25...... 8278 Federal Register system to: [email protected] 996...... 7096 39 ...... 5467, 6323, 6523, 6525, The Federal Register staff cannot interpret specific documents or 1429...... 6313 6529, 6533, 6535, 6536, regulations. 2902...... 6319 6539, 6541, 6543, 6549, Reminders. Effective January 1, 2009, the Reminders, including 4279...... 8404 7101, 7694, 8605, 8607, Rules Going Into Effect and Comments Due Next Week, no longer 4284...... 10090 8610, 8612, 8615, 8618, appear in the Reader Aids section of the Federal Register. This 4287...... 8404 8620, 8622, 9495, 9498, information can be found online at http://www.regulations.gov. 4288...... 7916, 7936 9963 CFR Checklist. Effective January 1, 2009, the CFR Checklist no Proposed Rules: 45...... 7482 longer appears in the Federal Register. This information can be 318...... 9978 61...... 8892 found online at http://bookstore.gpo.gov/. 319...... 9978 63...... 8892 925...... 7119 71 ...... 5469, 5470, 5471, 5472, FEDERAL REGISTER PAGES AND DATE, FEBRUARY 927...... 8917 6049, 8281, 8624, 8625, 1214...... 9695 8626, 8627, 9219, 9220, 5467–5678...... 1 9939–10204...... 23 2902...... 6366 9965, 9966, 9967 5679–6048...... 2 73...... 9501 6049–6310...... 3 9 CFR 77...... 8628 6311–6522...... 4 78...... 6322 91...... 8892 6522–6686...... 7 Proposed Rules: 93...... 8892 6686–7094...... 8 93...... 7721 97 ...... 6050, 6053, 8288, 8291 7095–7478...... 9 94...... 7721 110...... 7482 7479–7680...... 10 98...... 7721 119...... 7482 7681–8264...... 11 103...... 6702 121...... 7482, 8892 8265–8602...... 14 112...... 6702 129...... 7482 8603–8870...... 15 114...... 6702 135...... 7482, 8892 8871–9212...... 16 309...... 6572 142...... 8892 9213–9494...... 17 145...... 8892 9495–9638...... 18 10 CFR 183...... 8892 9639–9938...... 22 72...... 8872 440...... 8629

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Proposed Rules: 573...... 7106 30 CFR 51...... 6328 Ch. I ...... 8940 878...... 6551 901...... 9642 52 ...... 6331, 6559, 7116, 8298, 25 ...... 6088, 8314, 8316, 8319, 880...... 8637 8300, 9650, 9652, 9655, 8917, 9265 Proposed Rules: Proposed Rules: 104...... 5719 9656, 9658 27...... 6094 101...... 9525 63...... 9410, 9450 29...... 6094 285...... 8962 310...... 7743 901...... 9700 81...... 6056 33...... 8321 334...... 7743 93...... 6328 39 ...... 5503, 5505, 5507, 6575, 938...... 6587 948...... 6589 180 .....5687, 5691, 5696, 5704, 6578, 6581, 6584, 7511, 22 CFR 5711, 6335, 6342, 6347, 7513, 8661, 8919, 9513, Proposed Rules: 31 CFR 7703, 7707, 7712, 8895 9515, 9982, 9984 228...... 8961 271...... 6561, 6564 212...... 9939 71 ...... 7515, 8322, 8324, 8921, 302...... 9665 9266 23 CFR 548...... 5482 562...... 7695 Proposed Rules: Ch. II ...... 8940 470...... 6690 Ch. I...... 9709, 9988 Proposed Rules: Ch. III ...... 8940 Proposed Rules: Ch. II ...... 9988 1...... 7121 139...... 5510 Ch. I ...... 8940 Ch. III ...... 9988 29...... 6112 420...... 8923 Ch. II ...... 8940 Ch. IV...... 9988 103...... 9268 Ch. III ...... 8940 Ch. V...... 9988 15 CFR 24 CFR 32 CFR Ch. VI...... 9988 748...... 7102 Ch. VII...... 9988 Proposed Rules: 901...... 10136 199...... 8294 1...... 8674 922...... 6368 902...... 10136 655...... 6692 26...... 5735 907...... 10136 706...... 8894 50...... 8158 16 CFR Proposed Rules: Proposed Rules: 52 ...... 6376, 6590, 7142, 8326, Proposed Rules: 200...... 5518 156...... 5729 8330, 9281, 9705, 9706 1700...... 8942 903...... 6654 53...... 8158 33 CFR 905...... 6654 55...... 7518 17 CFR 941...... 6654 100 .....7107, 7701, 8651, 9221, 58...... 8158 229...... 6010 968...... 6654 9646 63...... 9410, 9450 240...... 6010 969...... 6654 117 .....5685, 5686, 6694, 7107, 82...... 9987 249...... 6010 3282...... 8852 8653, 9223, 9224, 9225, 141...... 7762 9646, 9968 271...... 6594 Proposed Rules: 25 CFR 3...... 6095 147...... 7107, 9646 4...... 7976, 8068 15...... 7500 165 .....7107, 8654, 8656, 9227, 42 CFR 9646 23...... 6708, 6715 26 CFR 405...... 5862 32...... 6095 334...... 6327 424...... 5862, 9502 33...... 6095 1...... 6553 Proposed Rules: 447...... 5862 35...... 6095 Proposed Rules: 100...... 7123, 9273 455...... 5862 145...... 7976 1...... 7757 117...... 7131, 8663 457...... 5862, 9233 147...... 7976 31...... 7757 154...... 9276 483...... 9503 200...... 8946 301...... 6369 155...... 9276 488...... 9503 165 .....5732, 6728, 7131, 7515, 229 ...... 6110, 6111, 8946 27 CFR 489...... 9503 230...... 8946 9278 498...... 5862, 9503 232...... 8946 1...... 5473, 9080 181...... 7757 1007...... 5862 239...... 6110, 8946 4...... 5473 36 CFR Proposed Rules: 240...... 8946 5...... 5473 100...... 8965 249 ...... 6110, 6111, 8946 7...... 5473 1254...... 6554 416...... 5755 275...... 8068 9...... 5473 Proposed Rules: 418...... 5755 279...... 8068 13...... 5473 219...... 8480 434...... 9283 16...... 5473 242...... 6730, 7758 438...... 9283 18 CFR 17...... 5473, 9080 447...... 9283 18...... 5473 157...... 8293 37 CFR 482...... 5755 19...... 9080 381...... 9641 201...... 9229 483...... 5755 20...... 5473 Proposed Rules: 484...... 5755 Proposed Rules: 22...... 5473 410...... 6727 1...... 6369 485...... 5755 24...... 5473, 9080 486...... 5755 19 CFR 25...... 5473 38 CFR 491...... 5755 26...... 5473, 9080 123...... 6688 1...... 6694, 9939 28...... 5473, 9080 43 CFR 141...... 8294 30...... 5473, 9080 17...... 9646 4...... 7500 142...... 6688 31...... 9080 36...... 6555 30...... 7500 178...... 6688 40...... 5473 Proposed Rules: 351...... 7491 3...... 5733, 8666 41...... 5473 44 CFR Proposed Rules: 44...... 5473 14...... 8666 351...... 5518 45...... 5473 20...... 8666 61...... 7508 53...... 5473 64...... 9666 20 CFR 39 CFR 70...... 5473 65...... 8900, 8905 350...... 9939 71...... 5473 20...... 7114 67...... 8906, 9668 404...... 9939 111...... 9231 Proposed Rules: 416...... 9939 28 CFR 3020...... 9648 67 ...... 5769, 6380, 8330, 8965, Proposed Rules: 552...... 6054 Proposed Rules: 8978, 8984, 8986, 9714 1001...... 9517 Proposed Rules: 111...... 9702 45 CFR 115...... 6248 3050...... 8325 21 CFR 88...... 9968 510...... 6326 29 CFR 40 CFR Proposed Rules: 516...... 6326 4022...... 8649 9...... 9450 5b...... 9295

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144...... 7767 48 CFR Ch. XII...... 8940 1002...... 9527 147...... 7767 205...... 9679 211...... 9527, 9714 1152...... 8992 170...... 5774 210...... 9679 212...... 9527 1201...... 8699 1609...... 6381 216...... 8303 252...... 9527, 9714 Ch. XI...... 8940 217...... 9680 1834...... 7526 46 CFR 219...... 9680 49 CFR 50 CFR 148...... 8658 245...... 6004, 6006 401...... 6351 252 ...... 6004, 6006, 8303 171...... 5483 17 ...... 6066, 6848, 7246, 9681, 173...... 5483 10166 Proposed Rules: 901...... 7685 191...... 5494 Ch. II ...... 8940 902...... 7685 216...... 6699 903...... 7685 192...... 5494 218...... 9250 904...... 7685 Proposed Rules: 47 CFR 300...... 6567 906...... 7685 Ch. I ...... 8940 622 ...... 5717, 6364, 7118, 9692 64...... 8659 907...... 7685 33...... 8675 648...... 8306 73...... 7719, 9249 908...... 7685 Ch. II ...... 8940 679 ...... 5718, 6083, 9693 Proposed Rules: 909...... 7685 229...... 8699 0...... 6928 911...... 7685 238...... 8699 Proposed Rules: 1...... 5652, 6928 914...... 7685 Ch. III ...... 8940 17 ...... 6734, 7528, 7634, 9297, 2...... 5521, 6928 915...... 7685 385...... 5537, 8990 9301, 9722, 9872, 9991 5...... 6928 916...... 7685 386...... 8990 22...... 9529 15...... 5521 917...... 7685 390...... 5537, 8990 100...... 6730, 7758 22...... 6928 952...... 7685 393...... 9717 223 ...... 6754, 6755, 9733, 9734 73 ...... 5521, 6928, 9991 1816...... 6696 395...... 5537, 8990 224...... 6383 74...... 6928 Proposed Rules: Ch. V...... 8940 622...... 9530, 9735 80...... 6928 24...... 7522 Ch. VI...... 8940 648...... 5555 87...... 6928 31...... 8989 Ch. VII...... 8940 665...... 8330 90...... 6928 52...... 8989 Ch. VIII...... 8940 679...... 7788 101...... 6928 Ch. II ...... 7782 Ch. X...... 8940 680...... 5556, 8700

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Register but may be ordered construction at 98 West First listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual Street, Yuma, Arizona, as the publaws-l.html LIST OF PUBLIC LAWS pamphlet) form from the ‘‘John M. Roll United States Superintendent of Documents, Courthouse’’. (Feb. 17, 2011; This is a continuing list of Note: This service is strictly U.S. Government Printing 125 Stat. 4) public bills from the current for E-mail notification of new Office, Washington, DC 20402 Last List February 3, 2011 session of Congress which laws. The text of laws is not have become Federal laws. It (phone, 202–512–1808). The text will also be made available through this service. may be used in conjunction PENS cannot respond to with ‘‘P L U S’’ (Public Laws available on the Internet from Public Laws Electronic Update Service) on 202–741– GPO Access at http:// Notification Service specific inquiries sent to this 6043. This list is also www.gpoaccess.gov/plaws/ (PENS) address. available online at http:// index.html. Some laws may www.archives.gov/federal- not yet be available. PENS is a free electronic mail register/laws.html. S. 188/P.L. 112–2 notification service of newly The text of laws is not To designate the United enacted public laws. To published in the Federal States courthouse under subscribe, go to http://

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