The environmental assessment of this federally assisted action indicates that the project will not cause significant local, regional, or national effects on the human environment. As a result of these findings, Kevin Brown, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.

The project purpose is flood prevention. The action includes the rehabilitation of one floodwater-retarding dam. The Notice of a Finding of No Significant Impact (FNSI) has been forwarded to the Environmental Protection Agency; various Federal, state and local agencies; and interested parties. A limited number of copies of the FNSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment is on file and may be reviewed by contacting Kevin Brown.

No administrative action on implementation of the preferred alternative will be taken until 30 days after the date of this publication in the Federal Register .

The environmental assessment of this federally assisted action indicates that the project will not cause significant local, regional, or national effects on the human environment. As a result of these findings, Kevin Brown, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.

The project purpose is flood prevention. The action includes removing or relocating two residences and acquiring flowage easements on approximately 425 acres in the breach inundation area of the structure. The Notice of a Finding of No Significant Impact (FNSI) has been forwarded to the Environmental Protection Agency; various Federal, state and local agencies; and interested parties. A limited number of copies of the FNSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment is on file and may be reviewed by contacting Kevin Brown. No administrative action on implementation of the preferred alternative will be taken until 30 days after the date of this publication in the Federal Register .

The environmental assessment of this federally assisted action indicates that the project will not cause significant local, regional, or national effects on the human environment. As a result of these findings, Kevin Brown, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project. The project purpose is flood prevention. The action includes the rehabilitation of one floodwater-retarding dam. The Notice of a Finding of No Significant Impact (FNSI) has been forwarded to the Environmental Protection Agency; various Federal, state and local agencies; and interested parties. A limited number of copies of the FNSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment is on file and may be reviewed by contacting Kevin Brown.

No administrative action on implementation of the preferred alternative will be taken until 30 days after the date of this publication in the Federal Register .

On July 5, 2001, PLF filed a petition for exemption from the requirements of section 7(a)(2) of the Endangered Species Act for the Plan. PLF filed the petition on behalf of the Klamath Irrigation District in Oregon and the Tulelake Irrigation District in California. PLF asserts that the halting of delivery of water for irrigation pursuant to the Plan, aimed at protecting Coho salmon and two species of sucker fish, threatens certain communities in California and Oregon and threatens other wildlife habitat.

Set forth below is a copy of the petition for exemption, without attachments:

On April 6, 2001, the Untied States Bureau of Reclamation adopted the Klamath Project 2001 Operations Plan pursuant to Biological Opinions issued by the United States Fish and Wildlife Service on April 5, 2001, and the National Marine Fisheries Service on April 6, 2001. These Biological Opinions require that surface elevations of reservoirs in the Klamath Irrigation Project (Klamath Project or Project), and river flow because Iron Gate Dam, must be maintained at such high levels that water will not be made available to irrigators this year.

Until recently the Klamath Project had been operated chiefly for the purpose of making water available to irrigators, who paid for the construction of the project, and contracted with the United States for the delivery of water. In recent years, however, concern about impacts on endangered species has shifted the Project's focus away from irrigation in favor of environmental enhancement. This year, delivery of water for irrigation was halted because of questionable concerns about two species of sucker fish and the Coho salmon. As a result of these actions, other wildlife habitat is threatened, and area communities are being destroyed.

Because delivery water according to Project contracts is likely to have little detrimental impact on endangered species, and operating the Project to withhold water will destroy both wildlife habitat and human communities, applicants Klamath Irrigation District and Tulelake Irrigation District ask the Endangered Species Committee to exempt the operation of the Klamath Project from the water use restrictions imposed under the Endangered Species Act; the Klamath Project should be allowed to operate according to historical practice, as the Bureau of Reclamation proposed in this action.

The applicants for exemption are irrigation districts depend on water supplies from the Klamath Project. Applicants represent water users who hold the beneficial interests in water rights established at the turn of the last century and earlier. For almost 100 years, they and their ancestors have toiled to support their families and build their communities which are dependent on agriculture. They are entitled to Project water delivered through Project facilities pursuant to contracts with the U.S. Bureau of Reclamation (“Reclamation”) and have done all they promised to do under those contracts. The United States has a duty under those contracts and reclamation law to preserve and protect the water supply for irrigation purposes.

The Klamath Project is a federal water project that lies within the Klamath River basin, straddling the border between Oregon and California. It was created pursuant to the Reclamation Act, enacted by Congress in 1902. The 1902 Act provided for federal financing of irrigation works, with the construction cost to be repaid over time by Project water users. Lands were made available to homesteaders who accepted the responsibility to undertake improvements and pay water changes. In May of 1905, the federal government specifically authorized the development of the Klamath Project pursuant to the 1902 Act.

The irrigable lands of the Klamath Project are in South-Central Oregon (62%) and North-Central California (38%). The Project provides full service water to approximately 240,000 acres of cropland. The total drainage area, including the Lost River and the Klamath River watershed above Keno, Oregon, is approximately 5,700 square miles. The Project consists of many dams, reservoirs, canals, tunnels, and pumping plants in both states. Various streams, springs, and other tributaries flow into upper Klamath Lake. Near the City of Klamath Falls, the lake's outlet is Link River, which eventually becomes Lake Ewauna and the Klamath River. After joining with numerous tributaries in California, the Klamath River discharges to the Pacific Ocean, at a point about 220 miles from Klamath Falls.

The Klamath Project delivers water under water rights that were originally obtained under state law. For example, with encouragement from the State of Oregon, the Untied States, acting through the U.S. Bureau of Reclamation, appropriated all the water of the Klamath River and its tributaries for use in the Project. Reclamation also acquired additional preexisting water right by purchase from private parties.

Lands within the Klamath Project have many different legal histories. Some landowners were issued certificates of Project water rights or had their own individual contracts with the government providing for delivery of water through project facilities in the early years of the Project. Many other landowners receive deliveries of Project water from various irrigation districts which, in turn, receive Project water pursuant to contracts with United States. The contracts also define the obligations of water users for repayment of construction costs and for reimbursement of operation charges for any facilities still operated by the Bureau of Reclamation. In many cases, irrigation districts have assumed full responsibility for operation and maintenance of federally constructed Project facilities.

Historically, the Klamath Project operated primarily to conserve and deliver water for irrigation use. However, in 1988, the shortnose sucker and the Lost River sucker, two species that live in Upper Klamath Lake, were designated as “endangered” under the Endangered Species Act. Since that time the U.S. Fish and Wildlife Service has scrutinized operation of the Klamath Project to ensure that operation of the Project does not jeopardize the continued existence of these species.

Under section 7(a)(2) of the Endangered Species Act, each federal agency is required to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (for anadromous fish) to “insure that any action authorized, funded, or carried out by such agency * * * is not likely to jeopardize the continued existence of any endangered species or threatened species.” Pursuant to this provision, the Bureau of Reclamation initiated consultation with these agencies as it has developed operating plans for the Project. As a result of section 7 consultation, in 1992 and 1994 the Fish and Wildlife Service issued Biological Opinions that required the Project to maintain minimum reservoir elevations to protect the suckers. These operating elevations were adopted by the Bureau of Reclamation.

In 1995, the Bureau of Reclamation announced that it would develop a plan for the long-term operation of the Project. Rather than adopt a long-term operating plan before the 1996 growing season, as was expected, the Bureau of Reclamation issued a series of interim one year operating plans. These plans contained new standards for maintaining lake levels and stream flow conditions. Under these new standards, the irrigators were eligible to receive only the water left over after new standards for holding and releasing water were satisfied. Although new standards were in force during these years, water deliveries were not reduced because supply was sufficient. This changed in 2001.

On February 13, 2001, the Bureau of Reclamation released its Final Biological Assessment for proposed operation of the Klamath Project for 2001, and thereby initiated consultation with the Fish and Wildlife Service and the National Marine Fisheries Service under section 7 of the Endangered Species Act. This consultation concluded when the Services issued new Biological Opinions requiring that Reclamation maintain minimum flows and minimum reservoir elevations. On April 6, 2001, the Bureau of Reclamation released the Klamath Project 2001 Operations Plan adopting these standards, and, for the first time in the history of the Project, prohibited all water diversions for the irrigation of tens of thousands of acres of farmland. That prohibition on water diversions has created a crisis. It has subjected approximately 1,400 farms and many more families to potential economic ruin and caused damage to the very ecosystem the government was try to protect.

But this crisis is entirely of the government's making. Beginning almost a century ago, the United States enticed homesteaders to the Klamath area with promises of guaranteed water. In exchange for these homesteaders' agreement to pay the costs of building the very project in question here, the United States entered into binding contracts to provide water for irrigation in perpetuity. Later, the United States enacted the Endangered Species Act which, according to current federal policy, requires government agencies to withhold promised water for species preservation. Government officials oversee the Klamath Project, as they have since its construction.

Government biologists prepared the environmental assessment and the Biological Opinions that were applied to deprive exemption applicants of their water. The water users have done nothing to create or exacerbate the problem. They have merely irrigated their fields with water that the United States promised them. Without water, most fields are unplanted this year. Some perennial crops persist from prior years, but their demise is almost certain because of the lack of water from the Project. Unfortunately, the government has not remedied this situation, and restrictions on water use persist. Therefore applicants seek an exemption from these water use restrictions.

Under 50 CFR 451.02 (2001), an application for exemption to the Endangered Species Committee must include the following information.

1. Name, mailing address, and phone number, including the name and telephone number of an individual to be contacted regarding the application.

David E. Haddock, Pacific Legal Foundation, 10360 Old Placerville Road, Suite 100, Sacramento, CA 95827, deh@pacificlegal.org , Telephone: (916) 362-2833, Facsimile: (916) 362-2932.

2. A comprehensive description of the applicant's proposed action.

The general action at issue here is the Bureau of Reclamation's proposed operation of the Klamath Project in accordance with historical precedents. The Project supplies water to irrigation districts and other individual irrigators pursuant to contracts with the United States and established water rights. A comprehensive description of the proposed action can be found in the April 5, 2001, Biological Opinion for the suckers and bald eagle, attached as Appendix B.

3. A description of the permit or license sought from the federal agency, including a statement of who in that agency denied the permit or license and the grounds for the denial.

Exemption applicants are parties to contracts with the Bureau of Reclamation for the delivery of irrigation water from the Klamath Project. Since these contracts give exemption applicants “the right in perpetuity * * * to receive from the Klamath Project all water needed * * * for beneficial irrigation uses,” in 1991 Reclamation initiated consultation with the U.S. Fish and Wildlife Service to ensure that fulfilling Reclamation's duties under this and other contracts would not jeopardize the continued existence of two endangered fishes, the Lost River sucker (Deltistes luxatus) and shortnose sucker (Chasmistes brevirostris). 1 As a result of this and additional consultation, Biological Opinions were issued by the U.S. Fish and Wildlife Service in 1992 and 1994 that permitted the continued operation of the Project under reasonable and prudent alternatives designed to avoid jeopardy to suckers. In December, 2000, Reclamation reinitiated consultation with the Fish and Wildlife Service on continuing operations of the Klamath Project.

In its final Biological Assessment dated February 13, 2001, Reclamation stated that it proposed “continuing operation of the Klamath Project to supply water to Project users and refuges.” The Biological Opinion issued by the U.S. Fish and Wildlife Service on April 5, 2001, which required reservoir surface elevations so high as to eliminate water deliveries to Project contractors, grew out of this reinitiation of consultation that began in late 2000. Similar restrictions relating to minimum flows below Iron Gate Dam were imposed by the National Marine Fisheries Service in its Biological Opinion relating to the Coho salmon, released April 6, 2001.

On April 6, 2001, the Bureau of Reclamation formally denied Project contractors the water they are entitled to by formally adopting the Klamath Project 2001 Annual Operations Plan. While acknowledging that “Reclamation has contractual obligations to Project water users to provide water primarily for domestic and irrigation uses,” the 2001 Operations Plan eliminated water deliveries by adopting the minimum reservoir elevation levels and minimum stream flows required by the Federal agencies' Biological Opinions.

4. A description of all permit(s), license(s), or other legal requirements which have been satisfied or obtained, or which must still be satisfied or obtained, before it can proceed with the proposed action.

Exemption applicants are parties to contracts with the United States to receive Klamath Project water for beneficial irrigation uses in perpetuity. The present contracts have been in force for more than 40 years, are in effect now, and will continue to be in effect in future years. No other legal requirements need to be satisfied for exemption applications to receive water promised under the contracts. See water contracts attached at Appendix H and Appendix I.

5. A copy of the permit or license denial.

Exemption applicants were denied their right to receive water from the Klamath Project by operation of the Bureau of Reclamation's Klamath Project 2001 Operations Plan, issued April 6, 2001. The 2001 Operations Plan incorporated requirements of the Fish and Wildlife Service and National Marine Fisheries Service's Biological Opinions to eliminate water deliveries. See attached, Appendix E.

6. A copy of the biological assessment, if one was prepared.

See attached, Appendix A.

7. A copy of the Biological Opinion.

See attached, Appendix B.

8. A description of the consultation process carried out pursuant to section 7(a) of the Act, to the extent that such information is available to the applicant.

As noted in Item 3 above, consultation was initiated by the Bureau of Reclamation in December, 2000. A Draft Biological Opinion for the suckers and the bald eagle was released by the Fish and Wildlife Service on March 13, 2001. The Final Biological Opinion was prepared in a scant 23 days, and was released in final form on April 5, 2001, presumably to ensure that exemption applicants would receive no water in time for planting this year.

Consultation with the National Marine Fisheries Service was concluded on April 6, 2001, with the release of the Biological Opinion relating to the Coho salmon. A further description of the consultation process as it concerns the 2001 Operations Plan may be found in the attached April 5, 2001, Biological Opinion for the suckers and bald eagle, Section I, Page 1, entitled “Consultation History” (Appendix B), and the April 6, 2001, Biological Opinion for the Coho salmon at Page 1 (Appendix D).

9. A description of each alternative to the proposed action considered by the applicant, and to the extent that such information is available to the applicant, a description of each alternative to the proposed action considered by the federal agency.

As part of the proposed action presented in its Biological Assessment for the suckers, the Bureau of Reclamation incorporated both planned and ongoing provisions of the Fish and Wildlife Service's 1992 and 1994 Biological Opinions, including mitigation measures, Reasonable and Prudent Alternatives, Reasonable and Prudent Measures, and Incidental Take Statement terms and conditions. These measures are described in Reclamation's February 13, 2001, Biological Assessment, Section 13, entitled “Appendix 1 ESA Consultation Review,” and in the Fish and Wildlife Service's April 5, 2001, Biological Opinion, Section I.1, entitled “Consultation History.” These documents are attached to this application at Appendix A and Appendix B.

In addition to alternative proposed in prior Biological Opinions, the Fish and Wildlife Service has identified what it call “[a] reasonable and prudent alternative (with 8 elements).” This so-called alternative is fully described in Section III, Part 2, Page 143, of the April 5, 2001, Biological Opinion, beginning at Item 6.0. Although the alternative is described as having eight elements, the Biological Opinions lists only six: (1) Maintenance of Minimum Surface Elevations in Upper Klamath Lake; (2) Operation Plan for Low Water Year; (3) Adaptive Management through Water Quality Monitoring and Reporting; (4) Entrainment Reduction and Fish Passage at A-Canal and Link River Dam and Monitoring and Restoration of Sucker Habitats from Keno to Link River; (5) Management of UKL Water Quality Refuge Areas and Emergent Vegetation Habitats; and (6) Maintain Minimum Lake Levels in Clear Lake, Gerber Reservoir, and the Tule Lake Sump. The Biological Opinion for the Coho Salmon also presents a so-called Reasonable and Prudent Alternative that requires stream flows at higher than historical levels. See Appendix B.

10. A statement describing why the applicants' proposed action cannot be altered or modified to avoid violating section 7(a)(2) of the Act

As an initial matter, serious questions about the scientific conclusions of the Biological Opinions persist. As discussed below, it is doubtful that operating the Project according to historical practice would have any detrimental impact on the survival of the species. Consequently, it is not clear, despite the conclusions of the Fish and Wildlife Service and the National Marine Fisheries Service, that the proposed action would in fact violate section 7(a)(2).

Contracts with the United States entitle exemption applicants to receive irrigation water from the Klamath Project. However, the alternatives described in the Biological Opinions, which were adopted by the Bureau of Reclamation in its 2001 Operations Plan, set reservoir elevations and stream flows so high that they effectively prohibit water from being made available to exemption applicants in low water years, such as this year. Federal officials claim no water can be diverted for irrigation purposes without violating section 7(a)(2) of the Endangered Species Act.

11. A description of resources committed to the proposed action by the permit or license applicant subsequent to the initiation of consultation.

Klamath Project water has been used continuously for almost 100 years. Applicants, and others like them, commit significant resources each year, including this year, in anticipation of receiving water from the Klamath Project. To prepare for the growing season, exemption applicants must plow fields, purchase seed, pay rent on leased farmland, and hire labor. Some of this preparation has followed the initiation of consultation by the Bureau of Reclamation. Exemption applicants committed these resources because every year prior to 2001 the United States has honored its contractual obligation to make water available through the Project. Exemption applicants expected that the United States would honor its contractual duty in 2001 as well. But because the United States has failed to make water available, resources committed to preparing for the 2001 growing season have been wasted. As a result, literally hundreds of farms are facing the possibility of economic ruin.

12. A complete statement of the nature and the extent of the benefits of the proposed action.

Ordinary water use provided by the Klamath Project offers substantial environmental, economic and social benefits. For example, water from the Klamath Project supports one of the most important staging areas for migratory waterfowl on the Pacific Flyway. Over 430 documented species of wildlife, including the largest wintering concentration of bald eagles in the lower 48 states, depend in part upon water diversions from the Project, diversions that are no longer allowed. Through direct releases and agricultural runoff, the Klamath Project supplies water for the lower Klamath and Tulelake national wildlife refuges. Water used for agriculture also serves environmental values by providing food and habitat for waterfowl and other wildlife.

In addition, the Klamath Basin produces $100 million in hay, grains, and vegetables each year. The agricultural industry supported by the Klamath Project includes 1,400 farms totaling more than 210,000 acres. Klamath farms produce livestock, barley, oats, wheat, potatoes, sugar beets, and forage. Approximately 110,000 acres serve as forage, including forage for migrating waterfowl and other wildlife; 57,000 acres are planted in cereal crops; 16,000 acres in vegetables; 7,000 acres are planted in cereal crops; 16,000 acres in vegetables; 7,000 acres in miscellaneous field crops; 298 acres in seed crops; and 227 acres in nursery crops.

The Klamath investment in agriculture produces an additional $250 million in economic activity in the various agriculturally dependent communities throughout the region. Livestock herds, that are being liquidated as a result of the lack of water this year, are worth another $100 million in replacement costs.

This traditional use of the Klamath Project for irrigation and other purposes guards against the catastrophic destruction of the Klamath Basin and the families and farms in the region, including disastrous effects on the economy and environment. Klamath farming communities and a rural way of life are dependent on regular water diversions from the Klamath Project.

Without water, farms cannot operate, and farm workers will be unemployed. Without farmers to buy seed, supplies, and equipment, the infrastructure of small businesses that support agriculture will collapse. In turn, restaurants, grocery stores, and other small community businesses will lose their customer base. Property values will plummet, loans will be in default, and county tax revenues will spiral downward.

The farmers and communities in the Klamath Basin have committed their livelihoods, their way of life, and the welfare of their families to cultivation of the region's agriculture, based on the water promised to them by the government through he Klamath Project.

Some individual farmers stand to lose nearly half a million dollars in potential income, based on resources that were long ago committed to farming the land. The predicament of David Cacka is typical of what is happening in the basin. Cacka runs a farming operation. He owns 80 acres of land and leases an additional 420 acres, some of which is owned by his father, some of which is owned by an elderly widow, and some of which is owned by other retired individuals. Each of Mr. Cacka's landlords depends for their livelihood on the rent he pays them. Cacka raises potatoes, grain, and alfalfa. He has one full-time employee and up to nine seasonal employees in his farming operation. Operating expenses for the farming business run as high as $400,000 per year, all of which is spent in the economy of the Klamath Basin. See Declaration of David Cacka in Support of Plaintiffs' Motion for Preliminary Injunction, Kandra v. United States, No. 01-6124-TC, 2001 U.S. Dist. LEXIS 6932 (D. Or. Apr. 30, 2001), attached at Appendix J.

Because of the loss of water due to the application of the Endangered Species Act to the Klamath Project, Cacka has had to leave idle farmland that has been in continuous production for 91 years. He will not have any employees, and will not be able to support the local businesses or contribute to the local economy. He and the other farmers in the Klamath Basin who depend upon water from the Klamath Project are facing economic hardship, if not outright ruin. Id.

Because the region developed and grew based on a century-old water rights agreement with the United States government, virtually the entire community has its resources committed to receiving its allocation of water from the Klamath Project, including schools, fire departments, libraries, parks, churches, community service organizations, and businesses, as well as county and city governments.

13. A complete discussion of why the benefits of the proposed action clearly outweigh the benefits of each considered alternative course of action.

The Biological Opinions, and the 2001 Operations Plan that was adopted pursuant to them, did not consider any alternative that would actually allow the exemption applicants to receive water. If such alternatives had been considered, they would have shown how recognizing exemption applicants' contractual right to receive water from the Project would have led to few impacts on imperiled species and would have served several other important interests. Because serious impacts on the suckers and coho would be unlikely, the benefits of making water available from the Klamath Project according to the terms of the contracts and according to historical practice, would clearly outweigh the benefits of eliminating water deliveries.

If operation of the Klamath Project according to historical practices would actually threaten to extirpate the species, requiring higher reservoir elevations would certainly provide an important benefit to be weighted. But there are legitimate reasons to doubt the validity of the Biological Opinions' conclusions. For example, fisheries biologist David Vogel, who has made significant contributions tot he understanding of the suckers at issue here, and was a principal contributor of information for the 1992 Biological Assessment on Long-Term Operations of the Klamath Project, has raised grave questions about the reliability of the Fish and Wildlife Service's scientific conclusions. Vogel testified before Congress recently about the scientific problems with the conclusions in the Biological Opinion for the two species of sucker fish.

As a scientist who has also provided comments on scientific analyses related to the Klamath Project, Vogel claims that in recent times it is “virtually impossible to comment and certainly impossible for the agencies to consider the comments objectively and meaningfully” because the time for submitting comments is too short. In this case, for example, the time between the issuance of the Draft Biological Opinion on March 13, 2001, and the issuance of the Final Biological Opinion on April 5, 2001, was only 6 days. The “overriding sense” Vogel has from this process is that “the goal is to dismiss what we have to offer.”

More important, though, is that this flawed process leads to flawed results. Vogel raises serious questions abut the status of the suckers as endangered, and the value of higher Upper Klamath Lake elevations for their continued survival. For example, Vogel argues that within three years after the sucker listing it “became apparent that the assumptions concerning the status of the shortnose suckers and Lost River suckers in the Lost River/Clear Lake watershed were in error.” Consequently, Vogel concludes, “[t]he species were either inappropriately listed as endangered because of incorrect or incomplete information or the species have rebounded to such a great extent that the fish no longer warrant the ‘endangered’ status.” Moreover, Vogel argues that “artificially maintaining higher-than-historical lake elevations,” as the Fish and Wildlife Service has required here, “is likely to be detrimental, not beneficial, for sucker populations.” Accordingly to Vogel, the facts show that in past low water years, increased fish kills simply have not occurred at low reservoir elevations. See attached, Appendix F, for a complete transcript of the “Testimony of David A. Vogel Before the House Committee on Resources Oversight Field Hearing on Water Management and Endangered Species Issues in the Klamath Basin, June 16, 2001.”

Vogel's concerns are merely examples of the scientific problems inherent in the Biological Opinions. Others abound. For example, there is no evidence that historical stream flows below Iron Gate Dam will have any detrimental effect on Coho salmon. With more study, and a truly objective scientific approach, it might be possible to arrive at a better understanding of the needs of these fish. Yet, at this point, the conclusions of the Biological Opinions are too questionable to accept in their fullness. But this is not all.

As discussed below, the 2001 Operations Plan threatens serious impacts to other critical wildlife resources, such as two federal wildlife refuges, and a major stopover for migratory waterfowl. Moreover, federal action, like this, that impairs the habitat of migratory birds and other species may violate international conventions. For example, the Convention on Biological Diversity, signed in 1992 by more than 160 nations, including the United States, obligates the United States to “[r]egulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use.” See Appendix G. The United States must also “[p]romote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings.” Id. By depriving federal wildlife refuges and other wildlife resources of necessary water, the United States violates its commitments to the international community.

Also, the Fifth Amendment to the United States Constitution concludes: “[N]or shall private property be taken for public use, without just compensation.” The purpose of that clause—as the oft-quoted language from Armstrong v. United States, 364 U.S. 40, 49 (1960), explains—is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” It is well established that a right to use water is a compensable property right. See United States v. State Water Resources Control Board, 227 Cal. Rptr. 168. (Dist. Ct. App. 1986) (explaining that “once rights to use water acquired, they become vested property rights. As such they cannot be infringed by others or taken by governmental action without due process and just compensation.”). This is so even when the right to use water is derived from contract. See Tulare Lake Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001) (finding liability under the Takings Clause of the Fifth Amendment where the United States interfered with contractual rights to receive and use water). By depriving exemption applications of the water to which they are contractually entitled, the United States not only violates the terms of applicable contracts, but it also takes exemption applicant's private property in violation of the Fifth Amendment.

The United States important public benefits when it keeps its commitments and follows fundamental principles; it engenders trust among its citizens. The benefits of the United States fulfilling its contractual obligations and following the U.S. Constitution, in this case by making water available, thereby protection struggling communities of people and wildlife, are incalculable. These public benefits outweigh the questionable benefits that will occur as a result of depriving exemption applicants of the water to which they are entitled.

14. A complete discussion of why none of the considered alternatives are reasonable and prudent.

Federal law requires that once a determination has been made that a proposed action will jeopardize the continued existence of the species, the consulting agency must propose “Reasonable and Prudent Alternatives” to the proposed action. The regulations define “reasonable and prudent alternatives” as alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that is economically and technologically feasible, and that the Director believes would avoid the likehood of jeorpardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.

50 CFR 402.02 (2001).

The greatest problem with so-called reasonable and prudent alternatives required by the Fish and Wildlife Service and the National Marine Fisheries Service is that they violate the first requirement, that alternatives be “consistent with the purpose of the underlying action.” The purpose of the Klamath Project is, and has always been deliver irrigation water to Project contractors, who have contracted for delivery of the water, and have paid substantial sums to the United States in exchange for the right to receive it. Alternatives that look only to environmental protection, like those offered in the Biological Opinions, are not “consistent with the purpose of the underlying action.” To the contrary, the alternative involved here are flatly inconsistent with the established irrigation purposes of the Klamath Project because they make the availability of water for irrigation secondary to other values.

Also, the requirements of the Biological Opinions may actually harm environmental values. The sucker Biological Opinion mandates Upper Klamath Lake surface elevations substantially higher than they have historically been, even in above-average water years. The difference between a full reservoir in wet years and the average low point in critically dry years is only about six feet. Yet the Biological Opinion sets a minimum Upper Klamath Lake elevation almost three feet higher that historic averages in critically dry years. As discussed more fully in Items 13 and 15, lower lake elevations are not likely to jeopardize the continued existence of the sucker fish. In fact, the unprecedented high elevation will hurt both wildlife and the environment by reducing foraging habitat for migratory birds and valuable wetlands. The higher elevation requirement will also result in increased sediment runoff and injure other protected species like the bald eagle.

Because the alternatives proposed are not consistent with the purposes of Klamath Project, and are not necessary for the ultimate protection of the fish, they do not fall within the definition of “reasonable and prudent alternatives” as provided in the regulations.

15. A complete statement explaining why the proposed action is in the public interest.

The public interest includes many things in addition to protecting imperiled wildlife. The public requires food and shelter, along with other aesthetic, educational, historical, recreational, and scientific values. In the Klamlath region, as in most of the Western United States these public interest values cannot be achieved without water. Water is necessary for all life, not just the life of endangered suckers. The proposed action would help satisfy these many public interests by providing this essential ingredient.

State law, which governs the use of water, finds specifically that the public interest includes other concerns beyond environmental protection. For example, “in acting upon applications to appropriate water,” the California State Water Resources Control Board is required to consider the relative benefit to be derived from (1) all beneficial uses of the water concerned including, but not limited to, use for domestic, irrigation, municipal, industrial, preservation and enhancement of fish and wildlife, recreational, mining and power purposes, and any uses specified to be protected in any relevant water quality control plan.

Cal. Water Code section 1257. In-stream uses, such as higher flows for fish protection, are not favored over other uses in determining what would be serve the public interest. They are simply one factor to be considered. California courts, for example, have specifically rejected the notion that California is prohibited from favoring water uses such as irrigation, even where harm may result to fish and wildlife resources. The California Supreme Court explained:

As a matter of current and historical necessity, the Legislature, acting directly or through an authorized agency such as the Water Board, has the power to grant usufructuary licenses that will permit an appropriator to take water from flowing streams and use that water in a distant part of the state, even though this taking does not promote, and may unavoidably harm, the trust uses at the source stream. The population and economy of this state depend upon the appropriation of vast quantities of water for uses unrelated to in-stream trust values. California's Constitution, its statues, decisions, and commentators all emphasize the need to make efficient use of California's limited water resources: all recognize, at least implicitly, that efficient use requires diverting water from in-stream uses. Now that the economy and population centers of this state have developed in reliance upon appropriate water, it would be disingenuous to hold that such appropriations are and have always been improper to the extent that they harm public trust uses. * * *

National Audubon Society v. Superior Court of Alpine County, 638 P.2d 709, 727-28 (Cal. 1983) (emphasis added; citations and footnote omitted). In short, according to statute, California must be able to balance competing water uses according to its own ideas about the public interest. Similar rules apply to Oregon water rights.

The States of California and Oregon permitted the United States to appropriate water for the Klamath Project with the understanding that such water would be distributed for irrigation. Thus, in this case, state water agencies have already exercised their authority to safeguard the public interest, have considered the water needs of fish and wildlife resources, and have nevertheless authorized the use of water for irrigation.

Beyond this, cutting off water to the basin will have injurious consequences to a wide array of wildlife in the region. The Klamath Basin is one of the most important staging areas for migratory waterfowl on the Pacific Flyway. Each year nearly three-quarters of all Pacific Flyway waterfowl stop in the Klamath Basin, including peak fall concentrations of over 2 million ducks, geese, and swans, and the largest wintering concentration of bald eagles in the lower 48 states. The wetlands and other resources upon which these birds depend require a regular supply of water from the Klamath Project. Some of the necessary water is delivered directly from the Project to federal wildlife refuges. Other important resources are supplied by agricultural runoff. But these sources have been cut off. As the region's 185 miles of canal ecosystem and 516 miles of drainage canal ecosystem are destroyed by government-imposed water prohibitions, the environment will suffer.

If Klamath Project water is not delivered as it has been in prior years, it will become extremely difficult to maintain the facilities used to divert and deliver water, along with the facilities used for draining runoff. This will reduce the availability of wildlife forage and valuable wetlands, not to mention increase the risks to public safety and property in the future due to hazards such as flooding. Irrigated land in the Tulelake area also supports large numbers and diversity of birds and other wildlife, including migratory waterfowl, raptors, deer, and antelope. These species feed on grain, alfalfa, and other crops grown in area farms. Irrigated farmland provides valuable wildlife habitat. Without irrigation water from the Project, once-productive farmland will not longer provide these important habitat values.

16. A complete explanation of why the action is of regional or national significance.

Agricultural production is one of America's greatest strengths. Americans spend a smaller percentage of income on food than residents of other nations. Forty-six percent of the world's soybeans are grown in the United States, 41% of corn. One-forth of the world's beef and nearly one-fifth of the world's grain, milk, and eggs are produced in the United States. About 17% of raw U.S. agricultural products are exported yearly, including 83 million metric tons of cereal grains, 1.6 billion pounds of poultry, and 1.4 million metric tons of fresh vegetables. Much of this abundance is produced using water from federal water projects such as the Klamath Project.

The Klamath Basin produces $100 million in hay, grains, and vegetables, with more than 1,400 farms totaling approximately 210,000 acres being supplied by the Klamath Project. Klamath farms produce livestock, barley, oats, wheat, potatoes, sugar beets, and forage. For example, 110,000 acres serve as forage, 57,000 acres are planted in cereal crops, 16,000 acres in vegetables, 7,000 acres in miscellaneous field crops, 298 acres in seed crops, and 227 acres in nursery crops.

The Klamath investment in agriculture produces an additional $250 million in economic activity in the various agriculturally dependent communities throughout the region. Livestock herds, that are being liquidated a result of the lack of water this year, are worth another $100 million in replacement costs.

The failure of the Klamath Project to deliver water to Project contractors threatens catastrophic destruction in the region. Without water, farms cannot operate, and farm workers will be unemployed, Without farmers to buy seed, supplies, and equipment, the infrastructure of small community businesses will lose their customer base. Property values will plummet, loans will be in default, and county tax revenues will spiral downward.

The farmers and communities in the Klamath Basin have committed their livelihoods, their way of life, and the welfare of their families to cultivation of the region's agriculture, based on the water promised to them by the government through the Klamath Project.

As noted above, some individual farmers, like David Cacka, stand to lose nearly half a million dollars in potential income, based on resources that were long ago committed to farming the land. This predicament is typical of what is happening in the basin.

Because the region developed and grew based on a century-old water rights agreement with the United States government, virtually the entire community has its resources committed to receiving its allocation of water from the Klamath Project. Directly or indirectly, availability of water from the Klamath Project is necessary for area schools, fire departments, libraries, parks, churches, community service organizations, and businesses, as well as county and city government.

Not only the region, but the nation as a whole, has an interest in preserving the Klamath Basin and averting disaster. The impact on the environment from lack of irrigation water is of tremendous regional and national significance. As a result of the Biological Opinions, displaced bald eagles will go elsewhere and battle for survival. Some likely will starve or die of exposure or disease. Others will have a harder time breeding successfully next spring.

The effects will be felt in employment, too, which has far-reaching consequences for the region and beyond. Steve Kandra, a third-generation farmer from Merrill in Klamath County has already had to lay off his work force: “I have been forced to lay off all of my employees, half of whom are Hispanic. Half of the students in our local public schools are Hispanic, most with parents who have jobs associated with agriculture. The Hispanic community would be a group severely impacted by the lack of irrigation water.” See Declaration of Steven L. Kandra in Support of Plaintiffs' Motion for Preliminary Injunction, Kandra v. United States No. 01-6124-TC, 2001 U.S. Dist. LEXIS 6932 (D. Or. Apr. 30, 2001), attached at Appendix K. The failure to make water available will result in defaulted loans and lost farms. According to David Solem, manager of the Klamath Irrigation District, all of these types of impacts (social, cultural) are likely to occur, including impacts to ethnic communities and other local cultural attributes, loss of food, foraging and habitat for migratory waterfowl and other birds and wildlife that makes heavy use of farmland, soil erosion, air quality, impacts from soil erosion, infestations, future chemical applications to control weeds and pests, and loss of fish and wildlife habitat in irrigation canals and drains.

See Declaration of David A. Solem in Support of Plaintiffs' Motion for Preliminary Injunction, Kandra v. United States, No. 01-6124-TC, 2001 U.S. Dist. LEXIS 6932 (D. Or. Apr. 30, 2001), attached at Appendix L.

According to Rick Woodley, Director of Klamath County Soil and Water Conservation District, denial of water will adversely affect the soil in the region, which will have dramatic regional significance.

Without normal crop production or establishment of cover crops on the bare soil, as it continues to dry, the entire Klamath Basin will see the full effect of life without water on the farmland. The loss of topsoil can never be recovered. The sedimentation (pollution) on the lakes, rivers, and streams of this basin, when rain does come, will have adverse effects to the very species this decision was designed to “protect.”

Letter from Rick Woodley, Apr. 18, 2001, attached at Appendix M.

17. A complete discussion of mitigation and enhancement measures proposed to be undertaken if an exemption is granted.

The Bureau of Reclamation's February 13, 2001, Biological Assessment for the suckers incorporated planned and ongoing provisions from the 1992 and 1994 Biological Opinions that do not require unprecedented reservoir elevations. These measures are fully discussed in the Biological Assessment in Section 2.6, entitled “1992 and 1994 Biological Opinion Provisions,” and in Section 13.0, entitled “Appendix 1 ESA Consultation Review.” They encompass a wide range of substantial and effective mitigation and enhancement measures, including sucker toxicity studies, taxonomy projects, spawning enhancement, marsh restoration, watershed improvement, and many other measures. These measures may continue without prohibiting essential water diversions for irrigation and wildlife in the Klamath Basin.

Delivering water according to Project contracts is likely to have little detrimental impact on endangered species. Yet operating the Project to withhold water, as the Fish and Wildlife Service and the National Marine Fisheries Service have required, will destroy both wildlife habitat and human communities. Exemption applicants therefore ask the Endangered Species Committee to exempt the operation of the Klamath Project from the onerous water user restrictions imposed under the Endangered Species Act. The Committee should allow the Klamath Project to operate according to historical practice, as the Bureau of Reclamation proposed.

1. On June 11, 1991, the United States Department of the Interior Agreement on Compliance with the Endangered Species Act entered into. The U.S. Fish and Wildlife Service considered the agreement to be a request for formal consultation pursuant to section 7 of the Endangered Species Act.

Section 451.02 of the Title 50, CFR requires the Secretary of Commerce or his designee to initially determine whether a petitioner is eligible to apply for an exemption, whether a petition is timely, and whether the petition presents all required information. If the Secretary or his designee determines that a petitioner is eligible to apply for an exemption and that the petition is timely and presents all required information, § 451.02(f)(3) of Title 50, CFR requires the Secretary or his designee to conduct a threshold review and make determinations in accordance with the requirements of § 452.03 of Title 50, CFR.

Certain incidental catch of fish cannot be retained by fishing vessels due to management controls, and such prohibited species are usually discarded. Under a NOAA program these fish may be donated to certain tax-exempt groups for distribution to needy individuals. Documentation is necessary to ensure that donations go to authorized parties for legitimate purposes.

The information is submitted to respond to requirements set forth in a regulation. There are also documentation and labeling requirements.

OMB Number: 0648-0316.

Form Number : None.

Type of Review : Regular submission.

Affected Public : Not-for-profit institutions, business and other for-profit organizations.

Estimated Number of Respondents : 79.

Estimated Time Per Response : 40 hours for an application, 40 hours for documentation by a distributor, 6 minutes for labeling and product tracking of a shipment by a vessel or processor, and 15 minutes to provide documentation on a vessel or processor.

Estimated Total Annual Burden Hours : 152.

Estimated Total Annual Cost to Public : $0.

Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

The MSAP will convene to review a stock assessment for cobia, Rachycentron canadum , in the Gulf and Atlantic area. The MSAP will consider available information from these analyses to determine the condition of the stocks and possible levels of acceptable biological catch (ABC) for the 2002-03 fishing year. The MSAP may also review estimates/proxies for maximum sustainable yield (MSY) and optimum yield (OY), as well as definitions of the overfishing and overfished condition. Finally, the MSAP will review management targets and rebuilding schedules, if needed.

Although non-emergency issues not contained in the agenda may come before the MSAP for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), those issues may not be the subject of formal MSAP action during this meeting. MSAP action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the MSFCMA, provided the public has been notified of the Council’s intent to take final action to address the emergency. A copy of the MSAP agenda can be obtained by calling (813) 228-2815.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Anne Alford at the Council (see ADDRESSES ) by July 25, 2001.

In accordance with a Memorandum of Understanding with the Secretary of State, NMFS publishes, for public review and comment, summaries of applications received by the Secretary of State requesting permits for foreign fishing vessels to fish in the U.S. EEZ under provisions of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq .).

This document concerns the receipt of an application from the Government of the Russian Federation requesting authorization to conduct joint venture (JV) operations in 2001 in the Northwest Atlantic Ocean for Atlantic herring and Atlantic mackerel. The large stern trawler/processor PATROKL is identified as the Russian vessel that would receive Atlantic herring and Atlantic mackerel from U.S. vessels in JV operations. The application also requests that the Government of the Russian Federation be allocated 3,000 metric tons (mt) of Atlantic herring and 2,000 mt of Atlantic mackerel for harvest by the named vessel in 2001.

Pursuant to Section 102(2)(C) of NEPA, the Navy has prepared and filed with the EPA a Draft PEIS for development of Ford Island at Pearl Harbor, HI.

A Notice of Intent for this PEIS was published in the Federal Register on April 14, 2000 (65 FR 20141).

Two public scoping meetings were held in Honolulu, HI, on May 2, 2000, and on May 4, 2000.

The proposed action is to consolidate selected operations at Pearl Harbor by locating and relocating certain activities onto Ford Island. This proposed action will use special legislation (10 U.S.C. 2814) that permits the Navy to sell or lease underutilized Navy properties on Oahu and to use the proceeds (in cash or in kind) for construction and facilities maintenance on Ford Island. Other work will be accomplished through conventional means such as the Military Construction Program, Non-Appropriated Funds, and Family Housing Public-Private Venture. Under consideration are new construction and, as appropriate, adaptive reuse of existing structures on Ford Island, for up to 420 new family housing units, up to 250,000 square feet of administrative space, bachelor enlisted quarters for up to 1,000 personnel, and a consolidated training complex, as well as infrastructure improvements. Up to 75 acres on Ford Island are proposed for private sector opportunities through a lease agreement. Four other Navy-owned parcels are proposed for sale or lease in return for revenues or in-kind consideration: Navy property at the Waikele Branch of Naval Magazine Pearl Harbor; family housing and related property at the former Naval Air Station Barbers Point; family housing and related property at Iroquois Point/Puuloa Housing; and Halawa Landing property on Pearl Harbor main side.

The proposed action will make positive use of the available lands and historic buildings on Ford Island in order to achieve greater operational efficiency and provide improved housing and quality of life for sailors and their families. Specific objectives are to provide additional high-quality family housing and community support services in close proximity to the Pearl Harbor Naval Complex where sailors work, thereby reducing commuting distances and improving the quality of their lives, and reducing maintenance costs and congestion at Pearl Harbor main side by relocating certain activities to Ford Island and replacing obsolete facilities. Use of some portions of Ford Island is constrained by existing facilities, historic resources, and operational requirements.

Alternatives for different levels of intensity of land use on Ford Island are considered in the Draft PEIS: High Intensity; Medium Intensity; Low Intensity; and No Action. Each development alternative represents a different designed balance between Navy and private development activities on Ford Island, and each alternative, except the No Action Alternative, includes the sale or lease of Navy properties to support Ford Island development. The High Intensity alternative assumes a level of development on Ford Island that meets all Navy facilities requirements, combined with private development that maximizes mixed-use development. The Medium Intensity Alternative also meets Navy facilities requirements on Ford Island with private development representing a reasonably sized mixed-use development. The Low Intensity Alternative limits the development on Ford Island to Navy requirements only. The Draft PEIS also considers the No Action Alternative, which assumes no further development of Ford Island, no private development, and no sale or long-term lease of Navy properties.

No decision on the proposed action will be made until the NEPA process is completed. The decision will be announced when the Secretary of the Navy releases the Record of Decision.

The Draft PEIS has been distributed to various federal, state, and local agencies, elected officials, and special interest groups. The Draft PEIS is available for public review at the following public libraries:

The Navy will conduct two public hearings to receive oral and written comments concerning the Draft PEIS. The public hearings will begin with a brief presentation followed by a request for comments on the Draft PEIS. Federal, state, and local agencies, and interested parties are invited to be present or represented at the hearings. Those who intend to speak will be asked to submit a speaker card (available at the door). Oral comments will be transcribed by a stenographer. To assure accuracy of the record, all statements should be submitted in writing. All statements, both oral and written, will become part of the public record in the study, with equal weight given to each. In the interest of available time, each speaker will be asked to limit oral comments to three minutes. Longer comments should be summarized at the public hearing and submitted in writing either at the hearing or mailed to Naval Facilities Engineering Command, Pacific Division, 258 Makalapa Drive, STE 100, Pearl Harbor, Hawaii 96860-3134 (Attn: Mr. Stanley Uehara, Code PLN231). Written comments should be postmarked by August 27, 2001.

Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.

The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.

Type of Review: New.

Title: Descriptive Study of Services to Limited English Proficient (LEP) Students.

Frequency: One time.

Affected Public: State, Local, or Tribal Gov't, SEAs or LEAs.

Reporting and Recordkeeping Hour Burden: Responses: 30,564; Burden Hours: 13,554.

Abstract: The study will provide data on the number and characteristics of LEP students, including LEP students with disabilities, and the instructional services they receive in public schools across the U.S. The findings will be used by federal, state, and local policy makers to inform decision-making concerning programs for LEP students and LEP students with disabilities. Data will be collected from public school district administrators and school staff.

Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov , or should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW., Room 4050, Regional Office Building 3, Washington, DC 20202-4651. Requests may also be electronically mailed to the internet address OCIO_IMG_Issues@ed.gov or faxed to 202-708-9346. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at (202) 708-6287 or via her internet address Sheila.Carey@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).

On June 19, 2000, in Docket EA-222, and on March 30, 2001, in Docket EA-233, the Office of Fossil Energy (FE) of the Department of Energy (DOE) authorized IPC to export electric energy from the U.S. to Canada and to Mexico, respectively, using a collection of international transmission facilities appropriate for third-party transmission of electric energy.

IDACORP, Inc. is a holding company of both IPC and IELP. The proposed request to transfer export authority is occasioned by a corporate reorganization of IDACORP, Inc., in which IPC will perform only public utility functions of owning and operating generating and transmission facilities while IELP will perform only power marketing functions. Since IPC will no longer be performing power marketing functions, the subject applications request the transfer of the authority to export electric energy from IPC to IELP.

IELP will purchase the electric energy to be exported to Mexico and to Canada from electric utilities, Federal power marketing agencies, cogeneration and small power production facilities, and exempt wholesale generators within the United States.

In FE Docket EA-244, IELP proposes to arrange for the delivery of electric energy to Mexico over the international transmission facilities owned by San Diego Gas & Electric Company, El Paso Electric Company, Central Power and Light Company, and Comision Federal de Electricidad, the national electric utility of Mexico.

In FE Docket EA-245, IELP proposes to arrange for the delivery of electric energy to Canada over the international transmission facilities owned by Basin Electric Power Cooperative, Bonneville Power Administration, Citizens Utilities, Eastern Maine Electric Cooperative, International Transmission Company, Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power, Inc., Minnkota Power Cooperative, New York Power Authority, Niagara Mohawk Power Corporation, Northern States Power, and Vermont Electric Transmission Company.

The construction of each of the international transmission facilities to be utilized by IELP, as more fully described in the applications, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.

Procedural Matters: Any person desiring to become a party to this proceeding or to be heard by filing comments or protests to this application should file a petition to intervene, comment or protest at the address provided above in accordance with §§ 385.211 or 385.214 of the FERC's rules of practice and procedures (18 CFR 385.211, 385.214). Fifteen copies of each petition and protest should be filed with the DOE on or before the date listed above.

Comments on the IELP application to transfer IPC's authority to export electric energy to Mexico should be clearly marked with Docket EA-244. Comments on the IELP application to transfer IPC's authority to export electric energy to Canada should be clearly marked with Docket EA-245. Additional copies are to be filed directly with Ms. Michelle I. K. Catherine, Manager, Contracts Administration, IDACORP Energy, L.P., Cottonwood Plaza, 350 North Mitchell Street, Boise, ID 83704 AND Mr. Jeffrey S. Burk, Steptoe & Johnson LLP, 1330 Connecticut Avenue, NW., Washington, DC 20036

A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.

Copies of these applications will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy Home Page at http://www.fe.doe.gov. Upon reaching the Fossil Energy Home page, select “Electricity Regulation” and then “Pending Procedures” from the options menus.

Purpose of the Meeting: The major purpose of this meeting is for the full committee to complete its work on the Theory Program review charge and the Burning Plasma Science charge. The committee will also receive briefings on the various elements of the Compact Stellarator program, and the ITER Canada proposal to host the International Thermonuclear Experimental Reactor (ITER).

Public Participation: The meeting is open to the public. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of the items on the agenda, you should contact Albert L. Opdenaker at 301-903-8584 (fax) or albert.opdenaker@science.doe.gov (e-mail). You must make your request for an oral statement at least 5 business days before the meeting. Reasonable provision will be made to include the scheduled oral statements on the agenda. The Chairperson of the Committee will conduct the meeting to facilitate the orderly conduct of business. Public comment will follow the 10-minute rule.

Minutes: We will make the minutes of this meeting available for public review and copying within 30 days at the Freedom of Information Public Reading Room; IE-190; Forrestal Building; 1000 Independence Avenue, SW.; Washington, DC, between 9:00 a.m. and 4:00 p.m., Monday through Friday, except Federal holidays.

This document solicits grant proposals from educational institutions and non-profit organizations to support the Office of Air and Radiation's Immediate Office's Environmental Internship Program (hereinafter referred to as “program”) that will provide undergraduate students with internships in various environmental positions. This intern program will provide students with work experience, orientation, mentoring, career development, and resume writing to reflect their environmental training positions. This program will enable students to prepare to become future leaders in the environmental field and to recognize and appropriately manage complex environmental problems. It will also provide students with an environmental consciousness to encourage them to pursue environmental careers and become environmentally conscious citizens.

Subject to the availability of funds, EPA anticipates approximately $600,000 over a three year period, to be available for this program, including all direct and indirect costs. EPA expects to award one cooperative agreement for the full amount. Proposals may request funding with a total project cost of up to $200,000 per year with a duration of up to three years. This cooperative agreement is authorized under CAA section 103(b)(3) and no matching funds are required from the recipient. The Catalogue of Federal Domestic Assistance (FDA) is 66.606.

Organizations being targeted for this assistance agreement include educational institutions and not-for-profit organizations. CAA section 103 prohibits for-profit organizations from receiving grants from EPA. EPA reserves the right to reject all applications and make no awards.

In order to efficiently manage the selection process, the Office of Air and Radiation requests that an “Intent to Apply” be submitted by August 13. These should be submitted to Linda Zarow; mail code 6101A; Room Number 5443K Ariel Rios North Building; Environmental Protection Agency; 1200 Pennsylvania Ave., NW.; Washington, D.C. 20460. (Please provide project title or subject and e-mail address.) E-mail address: Zarow.linda@epa.gov; Fax # 202/501-1004.

An “Intent to Apply” simply states, in the form of e-mail, letter, or fax, that your organization intends to submit a proposal to be received by the September 30, 2001 deadline for receipt of pre-proposals. Please provide your project title or subject and a return e-mail address. Submitting an “Intent to Apply” does not commit an organization to submit a pre-proposal. Only those submitting an “Intent to Apply” may submit a pre-proposal. To allow for efficient management of the competitive process, OAR is requesting organizations to submit an Intent to Apply no later than August 13, 2001.

EPA anticipates student stipends should not exceed $4,500 per semester with a minimum of seven students per semester. Applicants should describe the following in detail:

• Recruitment: Describe your process for recruiting from a diverse population of students. Include a list of colleges/universities to be targeted for recruitment activities and describe how your organization will ensure qualified students have access to internship materials.

• Housing: It is anticipated most interns will be from cities other than Washington, D.C. and, therefore, will require assistance in obtaining housing accessible to public transportation. Describe the type of housing assistance you will provide for interns.

• Stipends: Describe your process for tracking and payment of student stipends.

• Tracking: Describe your process for measuring the success of this program in encouraging students to pursue environmental careers.

• Student Evaluation and Application Processing: Describe your process for accepting, reviewing and evaluating student applications. At a minimum, the application process must evaluate potential interns on the basis of their computer skills, academic record, awards, and writing skills. Special consideration should be given to applicants that have scholarships or fellowships and work experience.

• Internship Training Program: Describe your protocol and procedures for managing an environmental internship program. At a minimum, the protocol and procedures should address college accreditation for students, supplemental training for interns and evaluation of student performance.

• Student eligibility requirements for internships: Students must be enrolled full-time in a four year accredited college or university. Full time students enrolled in a four year college or university must have achieved at least second semester sophomore standing, or have completed 45 credit hours of academic study. Students must have a grade point average of 2.8 or higher to meet eligibility for internships at EPA.

Review and Selection Process: Pre-proposals submitted to EPA headquarters will be evaluated using the criteria defined below. Pre-proposals will be reviewed in two phases—the screening phase and the evaluation phase. During the screening phase, proposals will be reviewed to be determined whether they meet the basic requirements of this solicitation. Only those pre-proposals that meet all of these basic requirements will enter the full evaluation phase of the review process. During the evaluation phase, proposals will be evaluated based upon the quality of their work plans, and how well their proposed programs meet the criterion outlined below. Reviewers conducting the screening and evaluation phases of the review process will include EPA officials and external environmental educators approved by EPA. At the conclusion of the evaluation phase, the reviewers will score work plans, on a one hundred point scale, based upon the system below:

The pre-proposal should conform to the following outline:

Intents to Apply: Intents to Apply may take the form of an e-mail, letter or fax and should be sent to: Linda Zarow, Ariel Rios Building, 1200 Pennsylvania Ave. Rm. 5433, Washington DC 20004; mail code 6101A, fax (202) 501-1004.; email: zarow.linda@epa.gov. Please include organization name, contact, and phone number.

Pre-Proposals: A hard copy original and 6 copies of the pre-proposal should be submitted to Linda Zarow at the address stated above. The pre-proposal must be postmarked before midnight September 30, 2001. Courier or personally delivered applications must be brought to Room 5443K Ariel Rios North Building, 1200 Pennsylvania Avenue, NW., Washington DC 20004.

Submission of an Intent to Apply or a pre-proposal does not guarantee funding.

To ensure that every interested party has equal opportunity to gain any needed additional administrative information useful to the application process, OAR will schedule a conference call for those who have submitted an intent to apply. EPA will notify applicants submitting an Intent to Apply of the date, time and call in number for this pre-application discussion. Questions and answers from this conference call will be summarized and available by contacting Linda Zarow by e-mail (zarow.linda@epa.gov). Federal rules protecting applicants' equal access to information prohibit any other contact that would result in information given to some but not all applicants. Therefore, as much as it desires to encourage all interested applicants, EPA can give no other assistance prior to final submission of applications. Requests for information outside the context of this conference call cannot be answered. The content of the call is entirely dependent upon questions asked.

OMB Control No.: 3060-0211.

Title: Section 73.1943 Political File.

Form No.: Not applicable.

Type of Review: Extension of currently approved collection.

Respondents: Business or other for-profit.

Number of Respondents: 16,597.

Estimated Time Per Response: 0.25 hour per request (each station is estimated to have 25 political broadcasts per year).

Frequency of Response: On occasion.

Total Annual Burden: 104,744 hours.

Total Annual Cost: 0.

Needs and Uses: Section 73.1943 requires licensees of broadcast stations to keep and permit public inspection of a complete record (political file) of all requests for broadcast time made by or on behalf of candidates for public office, together with an appropriate notation showing the disposition made by the licensee of such request. The data is used by the public to assess money expended and time allotted to a political candidate and to ensure that equal access was afforded to other qualified candidates.

The Commission is seeking information and comments from interested parties regarding the impact of the Government Paperwork Elimination Act (“GPEA”), Public Law 105-277, and the Electronic Signatures in Global and National Commerce Act (“E-SIGN”), Public Law. 106-229, on all sectors of the U.S. ocean shipping industry.

GPEA provides that electronic records and their related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form. GPEA requires agencies, by October 21, 2003, to provide for (1) the option of electronic maintenance, submission, or disclosure of information, when practicable as a substitute for paper; and (2) the use and acceptance of electronic signatures, when practicable. GPEA defines “electronic signature” as a method of signing an electronic message that (a) identifies and authenticates a particular person as the source of the electronic message; and (b) indicates such person's approval of the information contained in the electronic message. GPEA encourages Federal Government use of a range of electronic signature alternatives.

E-SIGN eliminates legal barriers to the use of electronic technology to form and sign contracts, collect and store documents, and send and receive notices and disclosures. E-SIGN provides that a contract, signature, or record may not be denied legal effect, validity or enforceability solely because it is in electronic form, and that a contract relating to such a transaction may not be denied legal effect, validity or enforceability solely because an electronic signature or electronic record was used in its formation, provided that, among other things, the parties agree to use or accept electronic records and or electronic signatures. Provisions in Federal and state statutes and agency regulations requiring the use of paper records and ink signatures in commercial, consumer, and business transactions have been superseded by E-SIGN as of October 1, 2000.

E-SIGN also preserves consumer protections for electronic commerce such as exist for paper-based transactions. The Act applies broadly to federal and state statutes and regulations governing private sector (including business-to-business and business-to-consumer) activities. The Act generally covers legal requirements that information be disclosed in private transactions. It also requires that agencies generally allow private parties to retain records electronically. The Government may establish appropriate performance standards for accuracy, integrity, and accessibility of records retained electronically, to ensure that compliance with laws can be determined, taxpayers can be protected, and the agency mission's can be accomplished.

In order for the FMC to develop and implement procedures for the use and acceptance of documents in electronic form where practicable, as well as other means of engaging in electronic transactions, the agency must assess such factors as costs, benefits, risks, available technologies, confidentiality and security measures.

Therefore, the Commission is seeking public comment to assist in its assessment. The Attachment contains several questions which we ask respondents to answer. If you or your organization are required to complete and submit any of the following forms/information collections to the FMC pursuant to 46 CFR Part 500 et seq. , the Commission would be especially interested in your responses to the questions in the Attachment.

• Form FMC-1 Organization Information

• Form FMC-18 Application for a License as an Ocean Transportation Intermediary

• Form FMC-48 Ocean Transportation Intermediary Bond

• Form FMC-67 Ocean Transportation Intermediary Insurance Form

• Form FMC-68 Ocean Transportation Intermediary Guaranty Form

• Form FMC-69 Ocean Transportation Intermediary Group Bond Form

• Form FMC-83 Service Contracts User Registration Form

• Form FMC-131 Application for Certificate of Financial Responsibility

• Form FMC-132A Passenger Vessel Surety Bond

• Form FMC-132B Passenger Vessel Surety Bond

• Form FMC-133 FMC Guaranty in Respect of Liability for Nonperformance Section 3 of the Act Pub. L. 89-777

• Form FMC-133B FMC Guaranty in Respect of Liability for Death or Injury Section 2 of the Act Pub. L. 89-777

• Form FMC-150 Information for Class A/B Agreements and Instructions

• Form FMC-152A Monitoring Reports for Class A Agreements

• Form FMC-152B Monitoring Reports for Class B Agreements

• Form FMC-152C Monitoring Reports for Class C Agreements

• Form FMC-151 Information for Class C Agreements and Instructions

The Commission encourages prospective commenters to address all relevant questions; however, there is no requirement that all questions be answered. Commenters are free to answer only those questions which they so choose.

In addition to availability in hard copy or by e-mail copy from the Commission's Secretary, the Notice of Inquiry (“NOI”) questions will be made available on the Commission's website at http://www.fmc.gov in a downloadable text file. Comments may be submitted in hard copy or as an attachment to an e-mail. These e-mail attachments must be submitted in WordPerfect 8, Microsoft Word 97, or earlier versions of these applications. For further information contact the Secretary at Secretary@fmc.gov or (202) 523-5725.

Now therefore , it is Ordered that Notice of this Inquiry be published in the Federal Register .

You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at http://www.federalreserve.gov for an electronic announcement that not only lists applications, but also indicates procedural and other information about the meeting.

In the Federal Register of January 5, 2001 (66 FR 1142), the agency announced that the proposed information collection had been submitted to OMB for review and clearance under 44 U.S.C. 3507. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0370. The approval expires on July 31, 2004. A copy of the supporting statement for this information collection is available on the Internet at http://www.fda.gov.ohrms/dockets.

In the Federal Register of May 1, 2001 (66 FR 21769), the agency announced that the proposed information collection had been submitted to OMB for review and clearance under 44 U.S.C. 3507. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0167. The approval expires on July 31, 2004. A copy of the supporting statement for this information collection is available on the Internet at http://www.fda.gov/ohrms/dockets.

In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.

Section 510(k) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360(k)) requires a person who intends to market a medical device to submit a premarket notification submission to FDA at least 90 days before proposing to begin the introduction, or delivery for introduction into interstate commerce, for commercial distribution of a device intended for human use. The definition of “person” has been expanded to include hospitals who reuse or remanufacture single-use medical devices. The estimated submissions below include those submitted by hospitals remanufacturing single-use medical devices.

Section 510(k) of the act allows for exemptions to the 510(k) submissions (i.e., a premarket notification submission would not be required if FDA determines that premarket notification is not necessary for the protection of the public health, and they are specifically exempted through the regulatory process). Under 21 CFR 807.85, “Exemption from premarket notification,” a device is exempt from premarket notification if the device intended for introduction into commercial distribution is not generally available in finished form for purchase and is not offered through labeling and advertising by the manufacturer, importer, or distributor for commercial distribution. In addition, the device must meet one of the following conditions: (1) It is intended for use by a patient or dentist (or other specially qualified persons), or (2) it is intended solely for use by a physician or dentist and is not generally available to other physicians or dentists.

A commercial distributor who places a device into commercial distribution for the first time under their own name and a repackager who places their own name on a device, and does not change any other labeling or otherwise affect the device, shall be exempted from premarket notification if the device was legally in commercial distribution before May 28, 1976, or a premarket notification was submitted by another person.

The information collected in a premarket notification is used by the medical, scientific, and engineering staffs of FDA in making determinations as to whether or not devices can be allowed to enter the U.S. market. The premarket notification review process allows for scientific and/or medical review of devices, subject to section 510(k) of the act, to confirm that the new devices are as safe and as effective as legally marketed predicate devices. This review process, therefore, prevents potentially unsafe and/or ineffective devices, including those with fraudulent claims, from entering the U.S. market. This information will allow FDA to collect data to ensure that the use of the device will not present an unreasonable risk for the subject's rights. The respondents to this information collection will primarily be medical device manufacturers and businesses.

FDA form 3514 was developed to assist respondents in organizing 510(k) data for submission to FDA. This form also assists respondents in organizing and submitting data for other FDA medical device programs such as premarket approval applications, investigational device exemptions, and humanitarian device exemptions.

In the Federal Register of April 30, 2001 (66 FR 21398), the agency requested comments on the proposed collection of information. No comments were received.

FDA estimates the burden of this collection of information as follows:

FDA has based these estimates on conversations with industry and trade association representatives, and from internal review of the documents listed in tables 1 and 2 of this document. The total burden for using voluntary FDA form 3514 is estimated to be approximately 1,000 hours and has been included in this information collection. Once this information collection has been approved, the burden for FDA form 3514 will be reported and approved in each of the following OMB information collections: 0910-0078, investigational device exemption reports and records; 0910-0231, premarket approval of medical devices; and 0910-0332, medical devices, humanitarian devices.

On January 9, 2001, CFSAN released a document entitled “2001 CFSAN Program Priorities.” The document, a copy of which is available on CFSAN's Web page (www.cfsan.fda.gov), constitutes the Center's priority workplan for FY 2001, i.e., October 1, 2000, through September 30, 2001. (Copies are also available from the contact person listed above.) The 2001 workplan is based on input we received from our stakeholders (see 65 FR 39415, June 26, 2000), as well as input generated internally. Throughout the priority-setting process, we focused on one central question: “Where do we do the most good for consumers?”

The paramount theme for the FY 2001 workplan has been program continuity. We continue to place our highest emphasis on the food safety initiative, food additives, dietary supplements, and food biotechnology. Outside of these priorities, the workplan identifies 10 other program areas and cross-cutting areas that need emphasis: (1) Nutrition, health claims and labeling; (2) chemical contaminants, pesticides and other hazards; (3) cosmetics; (4) preparing to move CFSAN offices and laboratories to a new facility in College Park, MD; (5) enhancing the science base; (6) international activities; (7) emerging areas (e.g., food allergens); (8) enhancing regulatory processes; (9) focused economic-based regulations; and (10) management initiatives.

The FY 2001 workplan contains two lists of activities in most major sections of the document—the “A” list and the “B” list. Our goal is to fully complete at least 90 percent of the “A” list activities. Activities on the “B” list are those we plan to make progress on, but may not complete before the end of the fiscal year. A new feature of the FY 2001 workplan has been “B” list items with an asterisk. These are the highest priority “B” list activities, most of which are 2-year projects that we are positioning to be on the “A” list the following year.

CFSAN intends to issue a progress report shortly on what program priority activities already have been completed to date in FY 2001.

CFSAN has responsibility for many important ongoing activities that are not identified in the workplan. For example, the Center's base programs in data collection, research, and enforcement are important and are ongoing. Rather, the workplan addresses primarily those initiatives representing something new or different that we need to address in 2001, as well as priority initiatives that are being continued from the 2000 workplan. In addition, the workplan does not address the myriad of unanticipated issues that often require a substantial investment of CFSAN resources (e.g., response to outbreaks of foodborne illness).

FDA is requesting comments concerning the establishment of program priorities in CFSAN for FY 2002. The input will be used to develop CFSAN's 2002 workplan. The workplan will set forth the Center's program priorities for October 1, 2001, through September 30, 2002. FDA intends to make the 2002 workplan available in the fall of 2001.

The format of the 2002 workplan will be similar to last year's workplan. FDA expects there will be considerable continuity and follow-through between the 2001 and 2002 workplans. For example, major documents published in early 2001 for public comment (e.g., biotechnology proposal; draft Listeria risk assessment) would likely be high priority for completion of final documents in FY 2002. Moreover, a number of goals inherently require a multi-year effort. For example, the Food Allergen Compliance Policy Guide issued in 2001 will need inspectional followup in 2002. FDA requests comments on other broad program areas that should continue to be a priority in FY 2002, or new areas that need to be initiated.

In addition, as noted above, the 2001 workplan highlights certain “B” list activities with an asterisk. Many of these are 2-year projects that we are positioning to be candidates for the “A” list next year. FDA requests comments on which “*B” and regular “B” list activities (i.e., those not designated with an asterisk) should be elevated to the “A” list for completion in 2002. Finally, as noted, FDA requests comments on new program areas or activities that should be added as a high priority for FY 2002.

Interested persons may submit to the Dockets Management Branch (address above) written or electronic comments regarding this notice by September 17, 2001. Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the office between 9 a.m. and 4 p.m., Monday through Friday.

FDA is announcing the availability of a guidance for industry entitled “Refusal of Inspection or Access to HACCP Records Pertaining to the Safe and Sanitary Processing of Fish and Fishery Products.” FDA seafood safety regulations require processors of fish and fishery products to operate preventive control systems for human food safety that incorporate the principles of HACCP (part 123 (21 CFR part 123)). The regulations further provide that fish and fishery products are adulterated under section 402(a)(4) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 342(a)(4)) if their processor fails to have and implement a HACCP plan when one is necessary, or otherwise fails to meet any of the requirements of the regulations, including allowing the official review of records (§ 123.6(g)). Processors must make their HACCP records and plans available “for official review and copying at reasonable times” (§ 123.9 (c)). This guidance, previously made available in draft for public comment, is intended to clarify that onsite inspection of a processing facility and concurrent review of HACCP records are essential elements of FDA's Seafood HACCP program as set forth at part 123. Thus, the failure to provide records and plans by a domestic or foreign processor during an inspection violates the regulation, even if a firm volunteers the documents after the inspection. FDA believes that violations of these provisions are significant.

In the Federal Register of November 14, 2000 (65 FR 68150) FDA published a notice announcing the availability of the draft version of this guidance and requested the submission of written comments by December 14, 2000. One comment was received in response to the draft guidance. That comment expressed concern that FDA is modifying the regulation so that offsite storage of HACCP records will no longer be permitted. FDA disagrees. This guidance does not change any provision of the regulation, but seeks to clarify those provisions dealing with inspections and records availability. The provision in question, § 123.9(b)(3), allows a processor to store records offsite under two circumstances: (1) The facility is closed for prolonged periods between seasonal packs, or (2) the facility is a processing vessel or remote site with limited storage capacity. However, 123.9(b)(3) requires that records be returned to the processing site immediately for official review upon demand (e.g., within 24 hours). As made clear by this requirement for immediate return, this provision does not contemplate that records would be made available for review offsite or after the inspection is completed. Thus, the guidance does not affect offsite storage of records under § 123.9(b)(3). The guidance addresses the circumstances in which processors want to submit HACCP records to FDA for review only after an onsite inspection has been conducted without access to records.

This guidance is being issued consistent with FDA's good guidance practices (21 CFR 10.115; 65 FR 56468, September 19, 2000). The guidance represents the agency's current thinking on refusal of inspection or access to HACCP records that pertain to the safe and sanitary processing of fish and fishery products. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute, regulations, or both.

Interested persons may, at any time, submit written comments on the guidance to the Dockets Management Branch (address above). Two copies of any comments are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. The guidance and received comments are available for public examination in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

Persons with access to the Internet may obtain the document at http://vm.cfsan.fda.gov/ dms/guidance.html.

FACA provides at section 10(b) that materials that are made available to an advisory committee in connection with an open advisory committee meeting shall also be made available to the public, if the materials are not exempt from disclosure under FOIA. This FACA provision is intended to facilitate meaningful public participation at such meetings. CDRH has now developed a process to make materials provided to advisory committee members in connection with open public meetings available for public disclosure, whenever practicable before or at the time of the meeting. This process also ensures that those materials exempt from disclosure under FOIA are protected. This draft guidance is designed to minimize the amount of time and resources spent in reviewing, redacting (the deletion of nondisclosable information), and publishing this information so that panel meetings can proceed when they are scheduled and in compliance with the requirements of FACA.

This draft guidance document represents the agency's current thinking on the availability of information given to advisory committee members in connection with CDRH open public panel meetings. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the applicable statutes and regulations.

The agency has adopted good guidance practices (GGPs), and published the final rule, which set forth the agency's regulations for the development, issuance, and use of guidance documents (21 CFR 10.115; 65 FR 56468, September 19, 2000). This draft guidance document is issued as a level 1 guidance in accordance with the GGP regulations.

In order to receive “Availability of Information Given to Advisory Committee Members in Connection with CDRH Open Public Panel Meetings; Draft Guidance for Industry and FDA Staff” via your fax machine, call the CDRH Facts-On-Demand system at 800-899-0381 or 301-827-0111 from a touch-tone telephone. Press 1 to enter the system. At the second voice prompt press 1 to order a document. Enter the document number 1341 followed by the pound sign (#). Follow the remaining voice prompts to complete your request.

Persons interested in obtaining a copy of the draft guidance may also do so using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes the civil money penalty guidance documents package, device safety alerts, Federal Register reprints, information on premarket submissions (including lists of approved applications and manufacturers' addresses), small manufacturers' assistance, information on video conferencing and electronic submissions, Mammography Matters, and other device-oriented information. The CDRH home page may be accessed at http://www.fda.gov/cdrh.

Interested persons may submit to Dockets Management Branch (address above) written or electronic comments regarding this draft guidance by October 16, 2001. Submit two copies of any comments, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document. The draft guidance document and any received comment may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

Program Objectives: DSRDN will work closely with State Offices of Rural Health and other stakeholders to publicize to eligible communities and organizations the opportunities available through the DSRDNs. ORHP expects DSRDNs to award subcontracts to help local providers and organizations form a culturally appropriate Rural Health Outreach Network covering each designated rural Delta County. Subcontract guidelines can be found in the Program Guide, which is part of the application materials. Such networks may, with the consent of the participating counties, be designed along prevailing service area boundaries rather than county lines. These locally controlled networks will receive funds to enhance network development, assess health needs, plan projects and seek funding, which will focus on improved access to primary health care to the medically underserved such as the under and uninsured. As a demonstration of community support, it is encouraged that the networks receive the endorsement of the county Chief Executive(s) for the geographic area to be served. These subcontracts should account for approximately two-thirds of the DSRDN's first year budget, or approximately $17,700 per eligible county.

Eligible Applicants: To be eligible to receive a grant through this program, an entity shall be a rural public or private not-for-profit entity that is or represents a network or potential network that includes three or more health care providers or other entities that provide or support the delivery of health care services. The lead applicant for each State must be based in one of the 205 identified rural Delta counties. Except for the lead applicant, other network members may be for-profit entities and may be located in a rural or urban area. The DSRDN must have the capacity and expertise to work with all the counties in the State. Examples of organizations that could work together to form a DSRDN network would be rural hospitals, universities, AHECs, Emergency Medical Services offices, community health centers, private providers, county councils, county health departments, mental health organizations, Faith-based and other organizations that will contribute significantly to goals of the network.

Evaluation Criteria: Reviewers will rank review and rank applications based upon the following criteria.

1. Ability to make staff reliably available in person in the rural Mississippi Delta Counties of the State to be served. (20 points)

2. Capacity to manage multiple subcontracts totaling several hundred thousand dollars. (15 points)

3. Organizational experience in rural health (e.g., working with rural health providers, addressing health care needs of rural communities). (15 points)

4. Demonstrated successful experience in developing and strengthening community-based organizations. (15 points)

5. Organizational experience working in rural counties in the Mississippi River Delta Region. (15 points)

6. Expertise in planning and implementing community health improvement projects. (10 points)

7. Demonstrated success in implementing rural community health improvement projects. (10 points)

As provided in the law a funding preference will be awarded to any qualified organization that can demonstrate substantial inclusion of any one of the following:

A. The project includes a majority of the health care providers serving in the area or region to be served by the network participants. (The applicant must document the number of health care providers in the service area or region and the percentage of those providers that will be involved in the project.)

B. The project includes any Federally qualified health centers, rural health clinics, and local public health departments serving the area or region. The involvement must be more than a referral relationship with other providers in the area. The entity must be a full and active member of the network. A letter of commitment must demonstrate the organization's roles, responsibilities, and contribution of resources to the project.

C. The project includes outpatient mental health providers serving in the area or region. (The applicant must identify the mental health providers in the area and demonstrate their level of participation in the project.)

D. Appropriate social service providers, such as agencies on aging, school systems, and providers under the Women, Infants and Children (WIC) program that are working to improve access to care and the coordination of health care services in the service area or region. (The applicant must identify the social service providers in the area and demonstrate their level of participation in the project.)

Applicants receiving the preference will be placed in a more competitive position among the applications that can be funded. Applications that do not receive a funding preference will be given full and equitable consideration during the review process. However, all applications that request and are eligible to receive a funding preference will be funded before applications in the funding line that do not have a funding preference.

To receive a funding preference, you must request it. Further, you must identify the type of preference for which you are eligible and demonstrate your eligibility in your application.

Requirements for Cost Sharing or Matching: None.

This grant program has been determined to be a program which is subject to the provisions of Executive Order 12372 concerning intergovernmental review of Federal programs by appropriate health planning agencies as implemented by 45 CFR part 100. Executive Order 12372 allows States the option of setting up a system for reviewing applications from within their States for assistance under certain Federal programs. Applicants (other than federally recognized Indian tribal governments) should contact their State Single Point of Contact (SPOCs), a list of which will be included in the application kit, as early as possible to alert them to the prospective applications and receive any necessary instructions on the State process. All SPOC recommendations should be submitted to Larry Poole, Office of Grants Management, Bureau of Primary Health Care, 4350 East West Highway, 11th Floor, Bethesda, Maryland 20814, (301) 594-4260. The due date for State process recommendations is 60 days after the application deadline of August 15, 2001, for the Delta State Rural Development Network Program for competing applications. The granting agency does not guarantee to “accommodate or explain” State process recommendations it receives after that date. (See Part 148 of the PHS Grants Administration Manual, Intergovernmental Review of PHS Programs under Executive Order 12372, and 45 CFR part 100 for a description of the review process and requirements.)

This program is subject to the Public Health System Reporting Requirements. Reporting requirements have been approved by the Office of Management and Budget—#0937-0195. Under these requirements, the community-based nongovernmental applicant must prepare and submit a Public Health System Impact Statement (PHSIS). The PHSIS is intended to provide information to State and local health officials to keep them apprised of proposed health services grant applications submitted by community-based organizations within their jurisdictions.

Community-based non-governmental applicants are required to submit the following information to the head of the appropriate State and local health agencies in the area(s) to be impacted no later than the Federal application receipt due date:

a. A copy of the face page of the application (SF 424)

b. An abstract of the project not to exceed one page, which provides:

(1) A description of the population to be served

(2) A summary of the services to be provided

(3) A description of the coordination planned with the appropriate State or local health agencies.

Dan Huff and Don DeLong are primary authors of this document.

GTNP and the NER border one another and are located just north of Jackson, in northwestern Wyoming. Together with the BTNF, they make up most of the southern half of the Greater Yellowstone Ecosystem. The NER comprises about 25,000 acres and the GTNP, about 304,000 acres. The Jackson Bison and Elk Herds make up one of the largest concentrations of free-ranging ungulates in North America. Currently, these herds total approximately 600 bison and 14,000 elk. The herds migrate across several jurisdictional boundaries including GTNP and southern Yellowstone National Park, the BTNF, Bureau of Land Management resource areas, and state and private lands, before they over-winter on the BTNF and the NER. Because of the wide range of authorities and interests, including cooperative management by the State of Wyoming on most federal lands, the NPS and FWS are seeking a cooperative approach to management planning involving all of the associated federal and state agencies and a broad range of organized and private interests.

A management plan (Jackson Bison Herd Long Term Management Plan and Environmental Assessment) was developed by GTNP and the NER, in cooperation with and Wyoming Game and Fish Department and the BTNF, for the Jackson Bison Herd and finalized in September, 1996. A Record of Decision (ROD) for that document was approved in 1997. But, a lawsuit was brought by the Fund for Animals (FFA) in 1998 enjoining most federal management actions proposed in the 1996 plan. The court ruled that destruction of bison on federal lands for population control purposes could not be carried out until additional NEPA compliance was completed for those actions. The court also directed that additional NEPA compliance consider the effects of elk winter-feeding by the FWS on the NER, on the Jackson bison population.

The Refuge Improvement Act of 1997 requires that “Comprehensive Conservation Plans” (CCPs) be developed for all national wildlife refuges. For the NER, elk management, including winter-feeding would make up the most significant issue in that CCP. In order to coordinate the compliance required for NER and GTNP bison and elk management under NEPA itself, the FFA lawsuit, and the Refuge Improvement Act, and since many management actions for one affect both species, this planning/compliance process was proposed by GTNP and the NER, and directed by the DOI Assistant Secretary for Fish and Wildlife and Parks in 1999.

A series of prescoping public meetings was held on this project, prior to formal scoping, to share information and demonstrate interests in future desired conditions by the wide range of interests. Results of these meetings are available on the project WebPage. While formal identification of project scope, including issues to be addressed, will be carried out in the scoping process, information from the prescoping meetings make it likely that bison and elk population size, habitat impacts of bison and elk and habitat management, associated recreation (including hunting programs), winter-feeding, and disease management will all be addressed. These issues may be redefined, and additional issues are likely to be identified.

Estimated dates for milestones in this process are listed below. Any revised dates will be provided in newsletters to the project mailing list, in news releases, and at the website.

Situation Assessment (completed)—September 21, 2000;

Prescoping Meetings (completed)—February 10-May 5, 2001;

Notice of Intent” published in Federal Register —July 15, 2001;

Scoping Meetings—July 20-August 3, 2001;

Draft Plan/EIS available to the public—September 15, 2002;

Final Plan/EIS available to the public—September 15, 2003;

“Record of Decision” published in Federal Register —January 1, 2004.

The Davis-Bacon Act provides that every government contract in excess of $2,000 which involves the employment of mechanics and/or laborers, contain a provision stating the minimum wages to be paid, which are based on the prevailing wage rate in the area for corresponding classes of mechanics and laborers employed on similar projects. Further, Section 1.3 of 29 CFR part I provides that the Wage and Hour Administrator will conduct a continuing program for the obtaining and compiling of wage rate information for the purpose of making wage determinations.

The Department of Labor is particularly interested in comments which:

• evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

• evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• enhance the quality, utility and clarity of the information to be collected; and

• minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. , permitting electronic submissions of responses.

The Wage and Hour Division seeks the approval of the revision of the currently approved information collection WD-10. The form has been revised in format to allow information to fit on legal size paper (8 1/2 x 14). Instructions have been provided on a second page. The WD-10 form has been revised to be user friendly and machine readable. Electronic imaging of WD-10 forms will expedite data transfer from hard copy to the supporting database. The form redesign is necessary for character recognition software to work effectively. An electronic WD-10 form is being developed which mirrors the paper form and will make it easier for respondents to provide information. The revision of the paper WD-10 and electronic submission of Form WD-10 will expedite data transfer to the supporting database. The use of the electronic WD-10 will expedite the survey process to allow more accurate and timely wage determinations. It is anticipated that completion and electronic submission capability of the WD-10 over the Internet will occur in 2002.

Type of Review: Revision.

Agency: Employment Standards Administration.

Title: Report of Construction Contractor's Wage Rates.

OMB Number: 1215-0046.

Agency Number: WD-10.

Affected Public: Businesses or other for-profit.

Frequency: On occasion.

Total Respondents: 37,500.

Total Responses: 75,000.

Time per Response: 20 minutes.

Estimated Total Burden Hours: 25,000.

Total Burden Cost (capital/startup): $0.

Total Burden Cost (operating/maintenance): $0.

Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.

The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (telephone (202) 942-8090).

1. The Trust is a Massachusetts business trust registered under the Act as an open-end management investment company with twelve series, four of which are advised by NFM and three or more investment subadvisers (the “Star Funds”). 1

2. NFM is registered under the Investment Advisers Act of 1940 (“Advisers Act”) and provides investment advisory and administrative services to the Trust. The assets of the Star Funds are allocated by NFM among multiple subadvisers (“Subadvisers”). Each Subadviser has discretion to purchase and sell securities for a discrete segment of a Star Fund's assets in accordance with that Star Fund's objectives and the Subadviser's own investment style and strategies. The subadvisory fees paid to each Subadviser are either paid by NFM or, if paid directly to the Subadviser by the Trust, reduce the management fee received by NFM from the Trust by the amount of the subadvisory fee.

3. The requested relief would permit: (a) any broker-dealer that itself serves as Subadviser (either directly or through a separate operating division) or is an affiliated person of a Subadviser (an “Affiliated Subadviser”) to a Multi-Segment Fund (as defined below) (an “Affiliated Broker-Dealer”) to engage in principal transactions with a portion of the Multi-Segment Fund that is advised by another Subadviser that is not an affiliated person of the Affiliated Broker-Dealer or the Affiliated Subadvisor (each such portion, an “Unaffiliated Segment”); (b) an Affiliated Broker-Dealer to provide brokerage services to an Unaffiliated Segment, and the Unaffiliated Segment to utilize such brokerage services, without complying with rule 17e-1(b) and (c) under the Act; (c) an Unaffiliated Segment to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Subadviser or a person of which an Affiliated Subadviser is an affiliated person (“Affiliated Underwriter”); (d) a portion of the Star Fund advised by an Affiliated Subadviser (“Affiliated Segment”) to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, in accordance with the conditions of rule 10f-3 except that paragraph (b)(7) of the rule would not require the aggregation of purchases by the Affiliated Segment with purchases by an Unaffiliated Segment; and (e) an Unaffiliated Segment to acquire securities issued by an Affiliated Subadviser or an affiliated person of an Affiliated Subadviser engaged in securities-related activities (“Securities Affiliate”) within the limits of rule 12d3-1. The requested relief would apply only if the Affiliated Broker-Dealer is not an affiliated person or an affiliated person of an affiliated person of NFM, the Subadviser making the investment decision with respect to the Unaffiliated Portion (“Unaffiliated Subadviser”), a principal underwriter, promoter, or an officer, trustee, or employee of the Multi-Managed Portfolio engaging in the transaction.

4. Applicants request that the exemptive relief apply to the Trust or any existing or future registered open-end management investment company or series thereof advised by (a) NFM or any entity controlling, controlled by, or under common control (within the meaning of section 2(a)(9) of the Act) with NFM and (b) at least one other investment adviser registered under the Advisers Act or exempt from such registration (the Star Funds and such investment companies or series thereof, each a “Multi-Segment Fund” or “Fund”). The relief also would apply to any existing or future entity that serves as an Affiliated Subadviser, Affiliated Broker-Dealer, or Affiliated Underwriter to a Multi-Segment Fund. Any investment company that currently intends to rely on the order is named as an applicant. NFM will take steps designed to ensure that any other existing or future entity that relies on the order will comply with the terms and conditions of the application.

1. Section 17(a) of the Act generally prohibits sales or purchases of securities or other property between a registered investment company and an affiliated person of, promoter of, or principal underwriter for such company, or any affiliated person of an affiliated person, promoter, or principal underwriter. Section 2(a)(3)(E) of the Act defines an affiliated person to be any investment adviser of an investment company, and section 2(a)(3)(C) of the Act defines an affiliated person of another person to include any person directly or indirectly controlling, controlled by, or under common control with such person. Applicants state that an Affiliated Subadviser would be an affiliated person of a Fund, and an Affiliated Broker-Dealer would be either an Affiliated Subadviser or an affiliated person of the Affiliated Subadviser, and thus an affiliated person of an affiliated person (“second-tier affiliate”) of a Fund, including the Unaffiliated Segment. Accordingly, applicants state that any transactions to be effected by an Unaffiliated Subadviser on behalf of an Unaffiliated Segment of a Multi-Segment Fund with an Affiliated Broker-Dealer are subject to the prohibitions of section 17(a).

2. Applicants seek relief under sections 6(c) and 17(b) to exempt principal transactions prohibited by section 17(a) because an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Segment solely because an Affiliated Subadviser is the Subadviser to another portion of the same Fund. The requested relief would not be available if the Affiliated Broker-Dealer (except by virtue of serving as a Subadviser) is an affiliated person or a second-tier affiliate of NFM, the Unaffiliated Subadviser making the investment decision, any principal underwriter or promoter of the Fund, or any officer, director or employee of the Fund.

3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each registered investment company and the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transaction from any provision of the Act if the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act.

4. Applicants contend that section 17(a) is intended to prevent persons who have the power to control an investment company from using that power to the person's own pecuniary advantage. Applicants assert that when the person acting on behalf of an investment company has no direct or indirect pecuniary interest in a party to a principal transaction, the abuses that section 17(a) is designed to prevent are not present. Applicants state that if an Unaffiliated Subadviser purchases securities on behalf of an Unaffiliated Segment in a principal transaction with an Affiliated Broker-Dealer, any benefit that might inure to the Affiliated Broker-Dealer would not be shared by the Unaffiliated Subadviser. In addition, applicants state that Subadvisers are paid on the basis of a percentage of the value of the assets allocated to their management. The execution of a transaction to the disadvantage of the Unaffiliated Segment would disadvantage the Unaffiliated Subadviser to the extent that it diminishes the value of the Unaffiliated Segment. Applicants further submit that NFM's power to dismiss Subadvisers or to change the portion of a Multi-Segment Fund allocated to each Subadviser reinforces a Subadviser's incentive to maximize the investment performance of its own portion of the Fund.

5. Applicants state that each Subadviser's contract assigns it responsibility to manage a discrete portion of the Multi-Segment Fund. Each Subadviser is responsible for making independent investment and brokerage allocation decisions based on its own research and credit evaluations. Applicants represent that NFM does not dictate brokerage allocation or investment decisions to any Fund advised by a Subadviser, or have the contractual right to do so. Applicants contend that, in managing a discrete portion of a Multi-Segment Fund, each Subadviser acts for all practical purposes as though it is managing a separate investment company.

6. Applicants state that the proposed transactions will be consistent with the policies of the Fund, since each Unaffiliated Subadviser is required to manage the Unaffiliated Segment in accordance with the investment objectives and related investment policies of the Fund as described in its registration statement. Applicants also assert that permitting the transactions will be consistent with the general purposes of the Act and in the public interest because the ability to engage in the transactions increases the likelihood of a Fund achieving best price and execution on its principal transactions, while giving rise to none of the abuses that the Act was designed to prevent.

1. Section 17(e)(2) of the Act prohibits an affiliated person or a second-tier affiliate of a registered investment company from receiving compensation for acting as broker in connection with the sale of securities to or by the investment company if the compensation exceeds the limits prescribed by the section. Rule 17e-1 sets forth the conditions under which an affiliated person or a second-tier affiliate of an investment company may receive a commission which would not exceed the “usual and customary broker's commission” for purposes of section 17(e)(2). Rule 17e-1(b) requires the investment company's board of directors, including a majority of the directors who are not interested persons under section 2(a)(19) of the Act, to adopt certain procedures and to determine at least quarterly that all transactions effected in reliance on the rule complied with the procedures. Rule 17e-1(c) specifies the records that must be maintained by each investment company with respect to any transaction effected pursuant to rule 17e-1.

2. As discussed above, applicants state that an Affiliated Broker-Dealer is either an affiliated person (as Subadviser to another portion of the Multi-Segment Fund) or a second-tier affiliate of an Unaffiliated Segment and thus subject to section 17(e). Applicants request an exemption under section 6(c) from section 17(e) and rule 17e-1 to the extent necessary to permit an Unaffiliated Segment to pay brokerage compensation to an Affiliated Broker-Dealer acting as broker in the ordinary course of business in connection with the sale of securities to or by such Unaffiliated Segment, without complying with the requirements of rule 17e-1(b) and (c). The requested exemption would apply only where an Affiliated Broker-Dealer is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Segment solely because an Affiliated Subadviser is the Subadviser to another portion of the same Multi-Segment Fund. The relief would not apply if the Affiliated Broker-Dealer (except by virtue of serving as Subadviser) is an affiliated person or a second-tier affiliate of NFM, the Unaffiliated Subadviser to the Unaffiliated Segment of the Multi-Segment Fund, any principal underwriter or promoter of the Fund, or any officer, director or employee of the Fund.

3. Applicants believe that the proposed brokerage transactions involve no conflicts of interest or possibility of self-dealing and will meet the standards of section 6(c). Applicants assert that the interests of an Unaffiliated Subadviser are directly aligned with the interests of the Unaffiliated Segment it advises, and an Unaffiliated Subadviser will enter into brokerage transactions with Affiliated Broker-Dealers only if the fees charged are reasonable and fair as required by rule 17e-1(a). Applicants also note that an Unaffiliated Subadviser has a fiduciary duty to obtain best price and execution for the Unaffiliated Segment.

1. Section 10(f) of the Act, in relevant part, prohibits a registered investment company from knowingly purchasing or otherwise acquiring, during the existence of any underwriting or selling syndicate, any security (except a security of which the company is the issuer) a principal underwriter of which is an officer, director, member of an advisory board, investment adviser, or employee of the company, or an affiliated person of any of those persons. Section 10(f) also provides that the Commission may exempt by order any transaction or classes of transactions from any of the provisions of section 10(f), if and to the extent that such exemption is consistent with the protection of investors. Rule 10f-3 under the Act exempts certain transactions from the prohibitions of section 10(f) if specified conditions are met. Paragraph (b)(7) of rule 10f-3 limits the securities purchased by the investment company, or by two or more investment companies having the same investment adviser, to 25% of the principal amount of the offering of the class of securities.

2. Applicants state that each Subadviser, although under contract to manage only a distinct portion of a Multi-Segment Fund, is considered an investment adviser to the entire Fund. As a result, applicants believe that all purchases of securities by an Unaffiliated Segment from an underwriting syndicate a principal underwriter of which is an Affiliated Underwriter would be subject to section 10(f).

3. Applicants request relief under section 10(f) from that section to permit an Unaffiliated Segment to purchase securities during the existence of an underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter. Applicants request relief from section 10(f) only to the extent those provisions apply solely because an Affiliated Subadviser is an investment adviser to the Fund. The requested relief would not be available if the Affiliated Underwriter (except by virtue of serving as Subadviser) is an affiliated person or a second-tier affiliate of NFM, the Unaffiliated Subadviser making the investment decision with respect to the Unaffiliated Segment of the Multi-Segment Fund, any principal underwriter or promoter of the Fund, or any officer, director, or employee of the Fund. Applicants also seek relief from section 10(f) to permit an Affiliated Segment to purchase securities during the existence of an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, provided that the purchase will be in accordance with the conditions of rule 10f-3, except that paragraph (b)(7) of the rule will not require the aggregation of purchases by the Affiliated Segment with purchases by an Unaffiliated Segment.

4. Applicants state that section 10(f) was adopted in response to concerns about the “dumping” of otherwise unmarketable securities on investment companies, either by forcing the investment company to purchase unmarketable securities from its underwriting affiliate, or by forcing or encouraging the investment company to purchase the securities from another member of the syndicate. Applicants submit that these abuses are not present in the context of the Multi-Segment Funds because a decision by an Unaffiliated Subadviser to purchase securities from an underwriting syndicate, a principal underwriter of which is an Affiliated Underwriter, involves no potential for “dumping.” In addition, applicants assert that aggregating purchases would serve no purpose because there is no collaboration among Subadvisers, and any common purchases by an Affiliated Subadviser and an Unaffiliated Subadviser would be coincidence.

1. Section 12(d)(3) of the Act, in relevant part, generally prohibits a registered investment company from acquiring any security issued by any person who is a broker, dealer, investment adviser, or engaged in the business of underwriting (collectively, “securities-related activities”). Rule 12d3-1 under the Act exempts certain transactions from the prohibitions of section 12(d)(3) if specified conditions are met. One of these conditions, paragraph (c) of rule 12d3-1, generally provides that the exemption provided by the rule is not available when the issuer of the securities is the investment company's investment adviser, promoter, or principal underwriter, or an affiliated person of the investment company's investment adviser, promoter, or principal underwriter.

2. Applicants state that each Subadviser is considered to be an affiliated person of an entire Multi-Segment Fund. Accordingly, a Securities Affiliate is either an affiliated person (as Subadviser to another portion of the Multi-Segment Fund) or a second-tier affiliate of an Unaffiliated Segment. Thus, an Unaffiliated Segment may not purchase securities of a Securities Affiliate in reliance on rule 12d3-1 because of paragraph (c). Applicants request relief under section 6(c) from section 12(d)(3) to permit an Unaffiliated Segment of a Multi-Segment Fund to acquire securities of a Securities Affiliate within the limits of rule 12d3-1. The requested exemption would apply only where a Securities Affiliate is deemed to be an affiliated person or a second-tier affiliate of an Unaffiliated Segment within the meaning of rule 12d3-1(c) solely because an Affiliated Subadviser is the Subadviser to another portion of the same Multi-Segment Fund.

3. Applicants state that their proposal does not raise the conflicts of interest that rule 12d3-1(c) was designed to address because of the nature of the affiliation between a Securities Affiliate and the Unaffiliated Portion. Applicants submit that each Subadviser acts independently of the other Subadvisers in making investment decisions for the assets allocated to its portion of the Multi-Segment Fund. Further, applicants submit that prohibiting the Unaffiliated Portions from purchasing securities issued by Securities Affiliates could harm the interests of a Fund's shareholders by preventing the Unaffiliated Subadviser from achieving optimal investment results.

Applicants agree that any order granting the requested relief will be subject to the following conditions:

1. Each Multi-Segment Fund relying on the requested order will be advised by an Affiliated Subadviser and at least one Unaffiliated Subadviser and will be operated in the manner described in the application.

2. No Affiliated Subadviser, Affiliated Broker-Dealer, Affiliated Underwriter or Securities Affiliate (except by virtue of serving as Subadviser to a discrete portion of a Multi-Segment Fund) will be an affiliated person or a second-tier affiliated of NFM, any Unaffiliated Subadviser, or any principal underwriter, promoter, officer, director, or employee of a Multi-Segment Fund.

3. No Affiliated Subadviser will directly or indirectly consult with any Unaffiliated Subadvisers concerning allocation of principal or brokerage transactions.

4. No Affiliated Subadviser will participate in any arrangement whereby the amount of its subadvisory fees will be affected by the investment performance of an Unaffiliated Subadviser.

5. With respect to purchases of securities by an Affiliated Segment during the existence of any underwriting or selling syndicate, a principal underwriter of which is an Affiliated Underwriter, the conditions of rule 10f-3 will be satisfied except that paragraph (b)(7) will not require the aggregation of purchases by the Affiliated Segment with purchases by an Unaffiliated Segment.

6. With respect to purchases by an Unaffiliated Segment of securities issued by a Securities Affiliate, the conditions of rule 12d3-1 will be satisfied except for paragraph (c) to the extent such paragraph is applicable solely because such issuer is an Affiliated Subadviser or an affiliated person of an Affiliated Subadviser.

The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, N.W., Washington, D.C. 20549-0101 (telephone (202) 942-8090).

1. Each of the Funds is either an open-end or closed-end management investment company registered under the Act. Several of the Funds are comprised of multiple series. Certain of the Funds are “master funds” in a “master-feeder structure.” Fifteen of the Funds are money market funds that comply with the requirements of rule 2a-7 under the Act (“Money Market Funds”). Each of the Funds is advised by either MLIM or FAM, and certain of the Funds are subadvised by MLAM U.K.

2. ML & Co. is a holding company incorporated in Delaware that provides investment, financing, insurance, and related services through its subsidiaries. Each of the Advisers is a wholly owned subsidiary of ML & Co. and is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). Each of the Affiliated Broker-Dealers is a subsidiary of ML & Co.

3. QALLC (also referred to as “Lending Agent”) is a Delaware limited liability company of which MLIM is the sole member and is registered as an investment adviser under the Advisers Act. QALLC will serve as lending agent in a securities lending program (“Lending Program”) for certain Funds (“Lending Funds”) and institutional clients of entities controlled by or under common control with ML & Co. (“Institutional Clients”). Institutional Clients may include qualified employee benefit plans, trusts, corporate cash accounts, unregistered funds (including those exempted from the definition of investment company by sections 3(c)(1) or 3(c)(7) of the Act), Taft-Hartley plans, foundations, endowments and bank collective investment trusts. QALLC also will form a private investment company (“New Fund”), for which it will serve as managing member. New Fund will serve as an investment option for the cash collateral and/or uninvested cash of Funds and Institutional Clients. New Fund will not register under the Act in reliance on the exemption from the definition of investment company provided by section 3(c)(7).

4. Applicants request that the order also apply to (a) any other registered investment company or series thereof that currently is or in the future may be advised or sub-advised (subject to the condition set forth below) by any of the Advisers or any other entity controlling, controlled by, or under common control with any of the Advisers or ML & Co. (each Adviser or entity, and “Advisory Entity”); (b) any other registered investment advisers that currently are or in the future may be controlling, controlled by, or under common control with any of the Advisers or ML & Co.; (c) any other broker-dealers now or in the future controlling, controlled by, or under common control with ML & Co.; and (d) any other unregistered fund organized to receive cash collateral and uninvested cash that may be managed by QALLC or any entity controlling, controlled by, or under common control with QALLC and/or ML & Co. 1 A Fund that is subadvised, but not advised, by an Advisory Entity may rely on the order, provided that the Advisory Entity manages the Cash Balances (as defined below) and that any relief granted from the provisions of sections 12(d)(1)(A) and (B) of the Act shall be available only if the Fund is in the same group of investment companies (as defined in section 12(d)(1)(G) of the Act) as the Money Market Fund in which the Fund invests Cash Balances.

5. Each Lending Fund has the ability to increase its income by participating in the Lending Program, under which it may lend portfolio securities to broker-dealers, including Affiliated Broker-Dealers, or institutional investors deemed by its Adviser to be of good standing. Each Lending Fund will participate in the Lending Program subject to securities lending guidelines adopted by the Fund's board of directors/trustees (“Board”), including by a majority of the directors/trustees who are not interested persons within the meaning of section 2(a)(19) of the Act (“Disinterested Directors”). The agreements governing any loans will require that the loans be continuously secured by collateral equal at all times in value to at least the market value of the securities loaned. Collateral for such loans may include cash )“Cash Collateral”) or other collateral, such as U.S. Government securities.

6. Under the Lending Program, the Lending Agent will be responsible for soliciting borrowers for each Lending Fund's securities, monitoring daily the value of the loaned securities and collateral, and requesting that borrowers add to the collateral when required by the loan arrangements. 2 The Lending Agent may manage Cash Collateral only in accordance with specific parameters provided by the Lending Fund's Adviser. These guidelines include permissible investment of the Cash Collateral as well as a list of eligible types of investments.

7. When a securities loan is collateralized with Cash Collateral, the Lending Fund will receive a portion of the return earned on the investment of the Cash Collateral. Depending on the arrangements negotiated with the borrower by the Lending Agent, the Lending Fund may pay the borrower a rate of interest for use of the Cash Collateral. When the collateral is not Cash Collateral, the Lending Agent will negotiate a lending fee to be paid by the borrower to the Lending Fund. For its services to the Lending Funds, the Lending Agent will receive fees based on a share of the revenue generated from the securities lending transactions.

8. Funds may have uninvested cash (“Uninvested Cash”) that comes from a variety of sources, including dividend or interest payments, unsettled securities transactions, reserves held for investment strategy purposes, scheduled maturity of investments, liquidation of portfolio securities to meet anticipated redemptions, as well as new monies received from investors.

9. Applicants propose that Funds (“Investing Funds”) and Institutional Clients invest Cash Collateral and Uninvested Cash (together, “Cash Balances”) in shares of Money Market funds or New fund. At least one series of New Fund in which the Investing Funds invest will operate as a money market portfolio that complies with the requirements of rule 2a-7 under the Act. Another series will invest in high quality securities with relatively short maturities, but which will not necessarily comply with all of the investment restrictions of rule 2a-7. 3 Series of New Fund in which the Investing Funds invest will offer daily redemption of shares at current net asset value per share. New Fund will not impose any sales load or redemption or distribution fees on any series in which the Investing Funds invest. QALLC will not charge any investment advisory fee with respect to shares of any series of New Fund owned by an Investing Fund.

10. Applicants request an order to permit (a) Lending Funds to pay the Lending Agent a fee based on a share of the revenue derived from securities lending activities; (b) Investing Funds and Institutional Clients to invest Cash Balances in Money Market Funds and/or New Fund; (c) Lending Funds to lend portfolio securities to Affiliated Broker-Dealers; and (d) Investing Funds to engage in certain transactions with each other.

1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit any affiliated person of or principal underwriter for a registered investment company or any affiliated person of such person or principal underwriter, acting as principal, from effecting any transaction in connection with any joint enterprise or other joint arrangement or profit sharing plan, in which the investment company participates. Rule 17d-1 permits the Commission to approve a proposed joint transaction covered by the terms of section 17(d). In determining whether to approve a transaction, the Commission considers whether the proposed transaction is consistent with the provisions, policies, and purposes of the Act, and the extent to which the participation of the investment companies is on a basis different from or less advantageous than that of the other participants.

2. Section 2(a)(3) of the Act defines an affiliated person to include any person directly or indirectly controlling, controlled by, or under common control with, the other person, and if the other person is an investment company, the investment adviser. The Advisers, as investment advisers to the Lending Funds, are affiliated persons of the Lending Funds. Applicants state that because the Lending Agent and the Advisers are under the common control of ML & Co., the Lending Agent may be deemed an affiliated person of the Advisers, and an affiliated person of an affiliated person (“second-tier affiliate”) of the Lending Funds. Accordingly, applicants request an order under section 17(d) and rule 17d-1 to permit each Lending Fund to pay and the Lending Agent to accept lending agent fees that are based on a share of the proceeds derived by the Lending Funds from the loans of portfolio securities.

3. Applicants propose that each Lending Fund adopt the following procedures to ensure that the proposed fee arrangement and the other terms governing the relationship with the Lending Agent will meet the standards of rule 17d-1:

(a) In connection with the initial approval of QALLC as Lending Agent for the Lending Funds, and implementation of the proposed fee arrangement, a majority of the Board of each Lending Fund (including a majority of the Disinterested Directors) will determine that: (i) the contract with QALLC is in the best interest of the Lending Fund and its shareholders; (ii) the services to be performed by QALLC are appropriate for the Lending Fund; (iii) the nature and quality of the services provided by QALLC are at least equal to those provided by others offering the same or similar services; and (iv) the fees for QALLC's services are fair and reasonable in light of the usual and customary charges imposed by others for services of the same nature and quality;

(b) In connection with the approval of QALLC as Lending Agent for the Lending Funds and the initial implementation of the proposed fee arrangement, the Board of each Lending Fund will review competing quotations with respect to lending agency fees from at least three independent lending agents to assist the Board in making the findings referred to in paragraph (a) above;

(c) Each Lending Fund's contract with QALLC for lending agent services will be reviewed annually and will be approved for continuation only if a majority of the Board (including a majority of the Disinterested Directors) makes the findings referred to in paragraph (a) above.

(d) The Board, including a majority of Disinterested Directors, will (i) determine at each regular quarterly meeting that the loan transactions during the prior quarter were conducted in compliance with the conditions and procedures set forth in the application and (ii) review no less frequently than annually the conditions and procedures for continuing appropriateness; and

(e) Each Lending Fund will (i) maintain and preserve permanently and in an easily accessible place a written copy of the procedures and conditions described in the application and (ii) maintain and preserve for a period of not less than six years from the end of the fiscal year in which any loan transaction pursuant to the Lending Program occurred, the first two years in an easily accessible place, a written record of each loan transaction setting forth a description of the security loaned, the identity of the person on the other side of the loan transaction, the terms of the loan transaction, and the information or materials upon which a determination was made that each loan was made in accordance with the procedures set forth above and the conditions to the application.

1. Section 12(d)(1)(A) of the Act provides that no registered investment company may acquire securities of another investment company representing more than 3% of the acquired company's outstanding voting stock, more than 5% of the acquiring company's total assets, or, together with the securities of other investment companies, more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) of the Act provides that no registered open-end investment company may sell its securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person or transaction from any provision of section 12(d)(1) if, and to the extent that, the exemption is consistent with the public interest and the protection of investors.

2. Applicants request an exemption under section 12(d)(1)(J) to permit each Investing Fund to use Cash Balances to acquire shares of one or more Money Market Funds in excess of the limits imposed by section 12(d)(1)(A), and the Money Market Funds to sell their securities to the Investing Funds in excess of the percentage limitations in section 12(d)(1)(B). 4 Applicants state that the proposed arrangement will not result in the abuses that sections 12(d)(1)(A) and (B) were intended to address. Applicants state that the arrangement will not result in an inappropriate layering of fees because the Money Market Funds will not charge a sales load, redemption fee, distribution fee adopted in accordance with rule 12b-1 under the Act, or service fee (as defined in rule 2830(b)(9) of the National Association of Securities Dealers Inc. Conduct rules (“NASD Conduct Rules”), or if such shares are subject to any such fees, the respective Adviser will waive its advisory fee for each Investing Fund in an amount that offsets the amount of such fees incurred by the Investing Fund. In addition, before approving or renewing any advisory contract, the Board, including a majority of the Disinterested Directors, will consider the extent to which the advisory fees charged to an Investing Fund by its Adviser should be reduced or waived to account for reduced services provided to the Investing Fund by the Adviser as a result of Uninvested Cash being invested in the Money Market Funds. If a Money Market Fund offers more than one class of shares, each Investing Fund will invest its Cash Balances only in the class with the lowest expense ratio at the time of investment. Applicants also represent that no Money Market Fund whose shares are acquired by an Investing Fund will acquire securities of any other investment company in excess of the limits contained in section 12(d)(1)(A).

3. Sections 17(a)(1) and (2) of the Act prohibit an affiliated person of a registered investment company, or any second-tier affiliate, acting as principal, from selling any security to, or purchasing any security from, the registered investment company. As noted above, section 2(a)(3) defines an affiliated person of another person to include persons that are under common control. Applicants state that because the Advisers may be deemed to control the Funds and because QALLC may be deemed to control New Fund, the Funds and New Fund may be deemed to be affiliated persons, or second-tier affiliates. In addition, section 2(a)(3) defines an affiliated person of another person to include any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person. To the extent that an Investing Fund owns 5% or more of the voting securities of a Money Market Fund or New Fund, applicants state that the Money Market Fund or New Fund could be an affiliated person of the Investing Fund. Accordingly, applicant state that section 17(a) would prohibit the sale of shares of the Money Market Fund or New Fund to an Investing Fund, and the redemption of such shares by the Money Market Fund or New Fund from the Investing Fund.

4. Section 17(b) of the Act authorizes the Commission to exempt a transaction from section 17(a) if the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each registered investment company concerned and with the general purposes of the Act. Section 6(c) of the Act authorizes the Commission to exempt any person or transaction from any provision of the Act if the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.

5. Applicants request an order under sections 6(c) and 17(b) of the Act to permit the Investing Funds to use Cash Balances to purchase shares of the Money Market Funds or a series of New Fund and to permit the redemption of the shares. Applicants maintain that the terms of the proposed transaction are reasonable and fair because the Investing Funds will purchase and sell shares of the Money Market Fund or New Fund on the same terms and on the same basis as other shareholders. Applicants assert that the proposed transactions comply with each Investing Funds' investment restrictions and policies. Applicants state that Investing Funds that comply with the requirements of rule 2a-7 under the Act will only invest in a series of New Fund complying with the provisions of rule 2a-7. Applicants further state that investment of Cash Collateral in new Fund and the Money Market Funds will be conducted in accordance with the securities lending guidelines of the Commission's staff. Applicants also state that New Fund will comply with the major substantive provisions of the Act, including the prohibitions against affiliated transactions, leveraging and issuing senior securities, and rights of redemption.

6. As noted above, section 17(d) and rule 17d-1 generally prohibit joint transactions involving registered investment companies and their affiliates unless the Commission has approved the transaction. In addition to the potential affiliations described above, applicants state that Institutional Clients also may be deemed affiliated persons of the Money Market Funds or New Fund because the Institutional Clients may be advised by Advisers or may own 5% or more of the outstanding voting securities of a Money Market Fund or a series of New Fund. Applicants state that the Investing Funds and Institutional Clients (by purchasing and redeeming shares of New Fund or a Money Fund), the Advisers (by managing the assets of the Investing Funds and certain Institutional Clients), QALLC (by acting as investment adviser to New Fund and as Lending Agent), New Fund (by selling shares to and redeeming shares from the Investing Funds), and each Money Market Fund (by selling shares to and redeeming shares from the Investing Funds and Institutional Clients) may be deemed to be participants in a joint enterprise or arrangement within the meaning of section 17(d) and rule 17d-1 to permit the described transactions relating to investments of Cash Balances in the New Fund and Money Market Funds. For the reasons discussed above, applicants believe that the proposed transactions meet the standards of rule 17d-1

1. Section 17(a)(3) of the Act makes it unlawful for any affiliated person of or principal underwriter for a registered investment company or an affiliated person of such a person, acting as principal, to borrow money or other property from the registered investment company. Applicants state that because an Affiliated Broker-Dealer would be under common control with the Advisers, an Affiliated Broker-Dearler may be considered an affiliated person, or a second-tier affiliate, of a Lending Fund. Applicants state that section 17(a)(3) would prohibit Affiliated Broker-Dealers from borrowing securities from Lending Funds.

2. As noted above, section 17(d) and rule 17d-1 generally prohibit joint transactions involving registered investment companies and their affiliates unless the Commission has approved the transaction. Applicants request relief under sections 6(c) and 17(b) of the Act exempting them from section 17(a)(3), and under section 17(d) and rule 17d-1 to permit Lending Funds to lend portfolio securities to Affiliated Broker-Dealers.

3. Applicants state that each loan to an Affiliated Broker-Dealer by a Lending Fund will be made with a spread that is no longer than that applied to comparable loans to unaffiliated broker-dealers. 5 In this regard, applicants state that at least 50% of the loans made by the Lending Funds, on an aggregate basis, will be made to unaffiliated borrowers. Moreover, all loans will be made with spreads that are no lower than those set forth in a schedule of spreads established by the Board of each Lending Fund, including a majority of the Disinterested Directors, and all transactions with Affiliated Broker-Dealers will be reviewed periodically by an officer of the Lending fund. The Board, including a majority of the Disinterested Directors, also will review detailed quarterly compliance reports on all lending activity.

1. Applicants state that the Funds currently rely on rule 17a-7 under the Act to engage in purchase and sale transactions of certain securities (“Interfund Transactions”). Rule 17a-7 excepts from the prohibitions of section 17(a) the purchase or sale of certain securities between registered investment companies that are affiliated persons, or second-tier affiliates, of each other or between a registered investment company and a person that is an affiliated person of such company (or a second-tier affiliate) solely by reason of having a common investment adviser or affiliated investment advisers, common officers, and/or common directors. Applicants state that the Funds may become affiliated persons of each other by virtue of an Investing Fund owning 5% or more of the outstanding voting securities of a Money Market Fund or a series of New Fund. Thus, applicants state that certain Funds may not be able to rely on rule 17a-7 to effect Interfund Transactions.

2. Applicants request an order under sections 6(c) and 17(b) to permit the Interfund Transactions. Applicants state that the Funds will comply with rule 17a-7 under the Act in all respects, other than the requirement that the participants be affiliated solely by reason of having a common investment adviser or affiliated investment advisers, common officers, and/or common directors. Applicants state that the additional affiliation created under sections 2(a)(3)(A) and (B) by the investment of Cash Balances does not affect the other protections provided by rule 17a-7, including the integrity of the pricing mechanism employed and oversight by each Fund's Board.

Applicants agree that the order granting the requested relief will be subject to the following conditions:

1. New Fund will be advised by QALLC or an entity controlling, controlled by, or under common control with QALLC and/or ML & Co. Each Fund will be advised and/or subadvised by an Advisory Entity. A Fund that is subadvised, but not advised, by an Advisory Entity may rely on the order, provided that the Advisory Entity manages the Cash Balances and that any relief granted from the provisions of sections 12(d)(1)(A) and (B) of the Act shall be available only if the Fund is in the same group of investment companies (as defined in section 12(d)(1)(G) of the Act) as the Money Market Fund in which the Fund invests Cash Balances.

2. The Lending Program of each Lending fund will comply with all present and future applicable Commission and staff positions regarding securities lending agreements.

3. Before a Lending Fund may participate in the Lending Program, a majority of the Board (including a majority of the Disinterested Directors) of the Lending Fund will approve the Lending Fund's participation in the Lending Program. The Board of each Lending Fund will evaluate the Lending Program and its results no less frequently than annually and a majority of the Board (including a majority of the Disinterested Directors) will determine that investing Cash Collateral in any of the Money Market Funds is in the best interests of the shareholders of the Lending Fund.

4. Each investing Fund will invest Uninvested Cash in, and hold shares of, the Money Market Funds and New Fund only to the extent that the Investing Fund's aggregate investment of such Uninvested Cash in the Money Market Funds and New Fund does not exceed 25% of the Investing Fund's total assets. For purposes of this limitation, each Investing Fund will be treated as a separate investment company.

1. A majority of the Board of an Investing Fund (including a majority of the Disinterested Directors), will initially and at least annually thereafter determine that the investment of Cash Balances in shares of New Fund is in the best interest of the shareholders of the Investing Fund.

2. QALLC will not charge any advisory fees with respect to a class or series of shares of New Fund in which any Investing Fund may invest.

3. Investment in shares of any series of New Fund by a particular Investing Fund will be consistent with that Investing Fund's investment objectives and policies.

4. An Investing Fund's Cash Balances will be invested in a particular investment series of New Fund only if that investment series invests solely in the types of instruments that the Investing Fund has authorized for the investment of its Cash Balances.

5. Any investment series of New Fund that uses the penny rounding method of valuation as defined in rule 2a-7 under the Act will comply with rule 2a-7 under the Act. With respect to such series, New Fund (through QALLC as the managing member) will adopt and monitor the procedures described in rule 2a-7(c)(8) under the Act and QALLC will take such other actions as are required to be taken pursuant to such procedures. An Investing Fund may purchase shares of an investment series of New Fund using the penny rounding method of valuation only if QALLC determines on an ongoing basis that such investment series is in compliance with rule 2a-7. QALLC will preserve for a period not less than six years from the date of determination, the first two years in an easily accessible place, a record of such determination and the basis upon which such determination was made. This record will be subject to examination by the Commission and the staff.

6. An Investing Fund that complies with the requirements of rule 2a-7 under the Act will not invest its Cash Balances in an investment series of New Fund that does not comply with the requirements of rule 2a-7.

7. New Fund will comply as to each investment series in which any Investing Fund invests with the requirements, other than to the extent of transactions described in the application, of sections 17(a), (d) and (e) and 18 of the Act as if New Fund were a registered open-end investment company. With respect to all redemption requests made by an Investing Fund, New Fund will comply with section 22(e) of the Act. QALLC shall, as managing member, adopt procedures designed to ensure that any such series of New Fund complies with sections 17(a), (d) and (e), 18, and 22(e) of the Act. QALLC will also periodically review and periodically update as appropriate such procedures and will maintain books and records describing such procedures, and maintain the records required by rules 31a-1(b)(1), 31a-1(b)(2)(ii) and 31a-1(b)(9) under the Act. All books and records required to be made pursuant to this condition will be maintained and preserved for a period of not less than six years from the end of the fiscal year in which any transaction occurred, the first two years in an easily accessible place, and will be subject to examination by the Commission and the staff.

8. The net asset value per share of each series of New Fund in which the Investing Funds may invest will be determined separately for each series by dividing the value of the assets belonging to that series, less the liabilities of that series, by the number of shares of New Fund outstanding with respect to that series.

9. The shares of New Fund in which the Investing Funds may invest will not be subject to a sales load, redemption fee, any asset-based sales charge or service fee (as defined in rule 2830(b)(9) of the NASD Conduct Rules).

10. Each Investing Fund will purchase and redeem shares of New Fund on the same basis as of the same time and at the same price, and will receive dividends and bear its proportionate share of expenses on the same basis as other shareholders investing in the same series of New Fund (except that QALLC will not charge any investment advisory fee with respect to shares owned by an Investing Fund). A separate account will be established in the shareholder records of New Fund for the account of each applicable Investing Fund.

11. New Fund will not acquire any securities of any investment company in excess of the limits contained in section 12(d)(1)(A) of the Act.

1. Shares of the Money Market Funds sold to and redeemed by the Investing Funds will not be subject to sales load, redemption fee, distribution fee under a plan adopted in accordance with rule 12b-1 under the Act, or service fee (as defined in rule 2830(b)(9) of the NASD Conduct Rules), or if the shares are subject to any such fee, the respective Adviser will waive its advisory fee for each Investing Fund in an amount that offsets the amount of the fees incurred by the Investing Fund.

2. Prior to reliance on this order, an Investing Fund will hold a meeting of the Board for the purpose of voting on the advisory contract under section 15 of the Act. Before approving or renewing any advisory contract for an Investing Fund, the Board, including a majority of the Disinterested Directors, taking into account all relevant factors, shall consider to what extent, if any, the advisory fees charged to the Investing Fund by the Adviser should be reduced to account for reduced services provided to the Investing Fund by the Adviser as a result of the Uninvested Cash being invested in the Money Market Fund. In connection with this consideration, the Adviser will provide the Investing Fund's Board with specific information regarding the approximate cost to the Adviser of, or portion of the advisory fee under the existing advisory contract attributable to, managing the Uninvested Cash of the Investing Fund that can be expected to be invested in the Money Market Fund. The minute books of the Investing Fund will record fully the Board's considerations in approving the advisory contract, including the consideration relating to the fees referred to above.

3. Investment of Cash Balances in shares of the Money Market Funds will be in accordance with each Investing Fund's respective investment restrictions, if any, and will be consistent with each Investing Fund's policies as set forth in its prospectuses and statements of additional information. Money Market Funds will not acquire shares of any investment company that does not comply with the requirements of rule 2a-7.

4. No Money Market Fund whose shares are acquired by an Investing Fund shall acquire securities of any investment company in excess of the limits contained in section 12(d)(1)(A) of the Act.

1. The Lending Funds, on an aggregate basis, will make at least 50% of their portfolio securities loans to unaffiliated borrowers.

2. A Lending Fund will not make any loan to an Affiliated Broker-Dealer unless the income attributable to such loan fully covers the transaction costs incurred in making such loan.

3. (a) All loans will be made with spreads no lower than those set forth in a schedule of spreads which will be established and may be modified from time to time by each Lending Fund's Board and by a majority of the Disinterested Directors (“Schedule of Spreads”).

(b) The Schedule of Spreads will set forth rates of compensation to the Lending Fund that are reasonable and fair and that are determined in light of those considerations set forth in the application.

(c) The Schedule of Spreads will be uniformly applied to all borrowers of the Lending Fund's portfolio securities, and will specify the lowest allowable spread with respect to a loan of securities to any borrower.

(d) If a security is loaned to an unaffiliated borrower with a spread higher than the minimum set forth in the Schedule of Spreads, all comparable loans to an Affiliated Broker-Dealer will be made at no less than the higher spread.

(e) The Lending Fund's Lending Program will be monitored on a daily basis by an officer of the Lending Fund who is subject to section 36(a) of the Act. This officer will review the terms of each loan to an Affiliated Broker-Dealer for comparability with loans to unaffiliated borrowers and conformity with the Schedule of Spreads, and will periodically, and at least quarterly, report his or her findings to the Lending Fund's Board, including a majority of the Disinterested Directors.

4. The total value of the securities loaned to any one broker-dealer on the approved list of borrowers of securities from a Lending Fund will be in accordance with a schedule to be approved by the Board of each Lending Fund, but in no event will the total value of the securities loaned to any one Affiliated Broker-Dealer exceed 10% of the net assets of such Lending Fund, computed at market value.

5. The Boards of the Lending Funds, including a majority of the Disinterested Directors, (a) will determine no less frequently than quarterly that all transactions with Affiliated Broker-Dealers effected during the preceding quarter were effected in compliance with the requirements of the procedures adopted by the Board and the conditions of this order if granted and that such transactions were conducted on terms which were reasonable and fair; and (b) will review no less frequently than annually such requirements and conditions for their continuing appropriateness.

6. The Lending Funds will maintain and preserve permanently in an easily accessible place a written copy of the procedures (and any modifications thereto) which are followed in lending securities and shall maintain and preserve for a period of not less than six years from the end of the fiscal years in which any loan occurs, the first two years in an easily accessible place, a written record of each loan setting forth the number of securities loaned, the face amount of the securities loaned, the fee received (or the rebate rate remitted), the identity of the borrower, the terms of the loan and any other information or materials upon which the finding was made that each loan made to an Affiliated Broker-Dealer was fair and reasonable, and that the procedures followed in making such loan were in accordance with the procedures and other undertakings set forth herein.

1. To engage in Interfund Transactions, the Funds will comply with rule 17a-7 under the Act in all respects other than the requirement that the parties to the transaction be affiliated persons (or second-tier affiliates) of each other solely by reason of having a common investment adviser, or investment advisers that are affiliated persons of each other, common officers, and/or common directors, solely because the Funds might become affiliated persons within the meaning of section 2(a)(3)(A) and (B) of the Act.