Purpose of Solicitation

This solicitation is issued under 7 U.S.C. 2204b(b)(4), which authorizes the Secretary of Agriculture to enter into cooperative agreements to improve the coordination and effectiveness of Federal programs affecting rural areas. The principal objective of this cooperative agreement is to continue a national outreach program that enables American Indian farmers, ranchers, and youth primarily located on Indian reservations in the contiguous United States to understand and have access to the various FSA Agriculture Credit Programs.

All proposed approaches must include a plan for how the project will have the following capabilities in place within three months after acceptance of award:

(1) A data tracking system that records and tracks all project credit outreach activities and has the ability to provide detailed statistical information on an ad hoc basis, that must also be functional on a real-time basis as well as being available online through the Internet, and

(2) The demonstrated ability to deliver these credit outreach services utilizing the FSA online Farm Business Plan software program.

Proposals must demonstrate innovative and unique ways of ensuring that American Indians have improved access to FSA Agricultural Credit Programs through targeted outreach activities including targeted promotional campaigns, educational programs, general information dissemination, and one-on-one assistance.

Today, American Indians own and control approximately 66 million acres of agricultural lands held in trust by the United States Government and administered, for the most part, by the Bureau of Indian Affairs (BIA) of the Department of the Interior. Land-based agricultural enterprises are considered the primary source of revenue for most tribes, due in large part to their geographical isolation from any urban type industrial development activities. Thus, protecting this resource and utilizing it effectively is an important function of the elected tribal officials charged with operating business activities that take place within reservations.

The United States Department of Agriculture (USDA) provides farmers and ranchers technical, financial, and educational resources. American Indian agricultural producers on reservations have historically been less able to benefit from USDA services than other farmers and ranchers. Since 1987, Congress has enacted Federal laws, such as the recent Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, 2008 Farm Bill), to address American Indians' lack of access to USDA's programs and services; this has resulted in beginning to close some of the gaps in access to these programs and services. As positive as these changes are, they have not fully addressed an implementation plan or the funds needed to carry out implementation of sorely needed agribusiness education and direct services to American Indian Reservation farmers and ranchers.

American Indian agribusinesses, as well as individual Indians, have consistently reported that the primary need in Indian agriculture is access to the capital required to own and operate their own farms or ranches. Therefore, FSA has created and implemented this cooperative funding mechanism to provide credit outreach and other related training and assistance services related to FSA's Agricultural Credit Programs, subject to funding, as a way to resolve some of the credit needs of Indian agriculture.

The following definitions are applicable to this Notice.

Agency or FSA. The United States Department of Agriculture Farm Service Agency.

Farm land. Land used for commercial agriculture crops, poultry and livestock enterprises, or aquaculture.

Federally-Recognized Indian Tribal Government. The governing body or a governmental agency of any Indian tribe, band, nation, or other organized group or community (including any Native village as defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602)) certified by the Secretary of the Interior as eligible for the special programs and services provided through the Bureau of Indian Affairs.

Land Grant Institutions.

(1) A 1994 institution (as defined in section 2 of the Agricultural Research, Extension, and Education Reform Act of 1998 (7 U.S.C. 7601)), or an 1890 institution.

(2) An Indian tribal community college or an Alaska Native cooperative college.

(3) A Hispanic-serving institution (as defined in section 1404 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3103)).

Non-Profit Organization. Any corporation, trust, association, cooperative, or other organization that:

(1) Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest;

(2) Is not organized primarily for profit; and

(3) Is recognized by the Internal Revenue Service as being certified as 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)).

Applicants must either be a non-profit organization, a federally recognized Indian tribe, or a land grant institution as defined above. Applications without sufficient information to determine eligibility will not be considered.

A proposal must contain an original and two copies of the following (Contact Mike Hill (see FOR FURTHER INFORMATION CONTACT above) if you need help getting the forms):

1. Form SF-424, “Application for Federal Assistance.”

2. Form SF-424A, “Budget Information—Non-Construction Programs.”

3. Form SF-424B, “Assurances—Non-Construction Programs.”

4. Table of Contents. For ease of locating information, each proposal must contain a detailed Table of Contents immediately following the required Federal forms. The Table of Contents should include page numbers for each component of the proposal. Pagination should begin immediately following the Table of Contents.

5. Proposal Summary. A summary of the project proposal, not to exceed one page, that includes the title of the project, a description of the project (including goals and tasks to be accomplished), the names of the individuals responsible for conducting and completing the tasks, and the expected time frame for completing all tasks (which should not exceed twelve months).

6. Eligibility. A detailed discussion, not to exceed two pages, describing how the applicant meets the definition of land grant institution, nonprofit organization, or Federally recognized Indian tribal government. In addition, the applicant must describe all other collaborative organizations that may be involved in the project.

7. Proposal Narrative. The narrative portion of the project proposal must be in a font such as Times New Roman (12 pt.) or comparable font and must include the following:

(a) Project Title. The title of the proposed project must be brief, not to exceed 100 characters, yet represent the major thrust of the project.

(b) Information Sheet. A separate one page information sheet that lists each of the seven evaluation criteria listed in this NOFA (see the “Evaluation Criteria and Weights” section below) followed by the page numbers of all relevant material and documentation contained in the proposal that address or support that criteria.

(c) Goals and Objectives of the Project. A clear statement of the ultimate goals and objectives of the project must be presented.

(d) Evaluation Criteria. Each of the seven evaluation criteria listed in this NOFA (see the “Evaluation Criteria and Weights” section below) must be addressed specifically and individually by category. These criteria should be in narrative form with any specific supporting documentation attached as addenda and should be placed directly following the proposal narrative. If other materials, including financial statements, will be used to support any evaluation criteria it should also be placed directly following the proposal narrative. The applicant must also propose and delineate significant agency participation in the project.

The amount of funds expected to be available for FY 2009 is approximately $746,496 based on historical funding levels. If actual funding differs from this amount, the Agency will publish a separate Notice of Funds Availability. Expenses incurred in developing applications will be at the applicant's risk.

Only one cooperative agreement will be awarded.

Cooperative agreement funds may be used to cover allowable costs incurred by the recipient and approved by the Agency. Allowable costs are governed by 7 CFR parts 3015, 3016, and 3019, as applicable, and applicable Office of Management and Budget Circulars.

Cooperative agreement funds must not be used to:

(1) Plan, repair, rehabilitate, acquire, or construct a building or facility (including a processing facility);

(2) Purchase, rent, or install fixed equipment, including mobile and other processing equipment;

(3) Pay for the preparation of the cooperative agreement application;

(4) Pay expenses not directly related to the funded venture (for example, cooperative agreement funds cannot be used to support the organization's general operations);

(5) Fund political or lobbying activities;

(6) Pay costs incurred prior to receiving this Cooperative Agreement;

(7) Fund any activity prohibited by 7 CFR parts 3015, 3016, and 3019, as applicable; and

(8) Fund architectural or engineering design work for a specific physical facility.

A National Office panel of USDA employees will review applications for eligibility, completeness, and responsiveness to this NOFA. Incomplete or non-responsive applications will be returned to the applicant and not evaluated further. If the submission deadline has not expired and time permits, ineligible applications may be returned to the applicants for possible revision.

The proposal will be evaluated using the criteria specified below. Failure to address any one of the criteria will disqualify the application. All proposals must be in compliance with this NOFA and applicable statutes.

Prior to technical examination, a preliminary review will be made by FSA Outreach Staff for responsiveness to this solicitation. Proposals that do not fall within the solicitation guidelines or are otherwise ineligible will be eliminated from competition. All responsive proposals will be reviewed by a panel of reviewers using the evaluation criteria stated below. The selected USDA employee reviewers will be chosen to provide maximum expertise and objective judgment in the evaluation of proposals. Evaluated proposals will be ranked by the FSA Outreach Staff based on the evaluation criteria and weights listed below. Final approval of those proposals will be made by the Administrator of FSA, subject to the availability of funding.

All responsive proposals will be reviewed based on the following seven criteria:

(1) Applicant's Commitment and Resources (15 points). The standard evaluates the degree to which the organization is committed to the project, and the experience, qualifications, competency, and availability of personnel and resources to direct and carry out the project. In addition, the applicant must demonstrate its ability to deliver credit outreach services utilizing the FSA online Farm Business Plan software program after acceptance of any financial award.

(2) Feasibility and Policy Consistency (20 points). The standard evaluates the degree to which the proposal clearly describes its objectives and evidences a high level of feasibility. This criterion relates to the adequacy and soundness of the proposed approach to the solution of the problem and evaluates the plan of operation, timetable, evaluation, and dissemination plans.

(3) Detailed Description of Collaborative Partnerships, if any, and Program Recipients (20 points). This standard evaluates the degree to which the proposal reflects partnerships and collaborative initiatives with other agencies or organizations to enhance the quality and effectiveness of the program. Additionally, the areas and number of underserved American Indian farmers, ranchers, and youth who would benefit from the services offered will be evaluated.

(4) Outreach to Socially Disadvantaged American Indian Applicants (10 points). This standard evaluates the degree to which the proposal contains detailed programs to reach persons identified as socially disadvantaged American Indian farmers, ranchers, and youth. The proposal will be evaluated for its potential for encouraging and assisting socially disadvantaged American Indian farmers, ranchers, and youth to utilize the various FSA agriculture credit programs. Elements considered include impact, continuation plans, innovation, and expected products and results.

(5) Innovative Strategies (25 points). This standard evaluates the degree to which the proposal reflects innovative strategies for reaching the population targeted in the proposal and achieving the project objectives. This standard will also evaluate data tracking capability. For data tracking, the standard evaluates evidence that the applicant has the ability to put in place a data tracking system that can record and track all credit outreach activities and the ability to provide detailed statistical information on an ad hoc basis, with additional evidence supporting the system's ability to function on a real-time basis as well its ability to be available online through the Internet. For innovative solutions, the standard evaluates originality, practicality, and creativity in proposing ways to develop and test innovative solutions to existing or anticipated credit issues or problems of socially disadvantaged American Indian farmers, ranchers, and youth. The proposal will be reviewed for its responsiveness to the need to provide socially disadvantaged American Indian farmers, ranchers, and youth with promotion, relevant information, and direct assistance in applying for and receiving FSA agriculture credit, and other essential information to enhance participation in agricultural programs and conduct a successful farming or ranching operation.

(6) Overall Quality of the Proposal (5 points). This standard evaluates the degree to which the proposal complies with this NOFA and is of high quality. Elements considered include adherence to instructions, accuracy and completeness of forms, clarity and organization of ideas, thoroughness and sufficiency of detail in the budget narrative, specificity of allocations between targeted areas if the proposal addresses more than one area, and completeness of vitae for all key personnel associated with the project.

(7) Accuracy of Proposed Budget and Justification (5 points). This standard evaluates the accuracy of the proposed budget and the accompanying budget justification. The proposed budget should provide a detailed description of each budget category that includes categorical subtotals as well as a separate budget justification that clearly defines and explains each and every proposed budget line item.

When the reviewers have completed their individual evaluations, the panel reviewers, based on the individual reviews, will make a recommendation to the Administrator that one responsive proposal be approved for support from available funds. Prior to award, the Administrator reserves the right to negotiate with an applicant whose project is recommended for funding regarding project revisions (for example, change in scope of work or the Agency's significant involvement), funding level, or period of support. A proposal may be withdrawn at any time before a final funding decision is made.

Within the limit of funds available for such purpose, the Administrator will enter into a cooperative agreement with the successful applicant. The date specified by the Administrator as the effective date of the award will not be later than 12 months after the project is approved for support and funds are appropriated for such purpose, unless otherwise permitted by law.

The deadline for receipt of all applications is 5 p.m. eastern time September 18, 2008 The Agency will not accept any application received after the deadline.

Cooperators will be required to do the following:

• Sign required Federal grant-making forms including:

○ Form AD-1047, Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Covered Transactions;

○ Form AD-1048, Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions;

○ Form AD-1049, Certification Regarding a Drug-Free Workplace Requirements (Grants); and

○ Form RD 400-4, Assurance Agreement (Civil Rights).

• Use Standard Form 270, Request for Advance or Reimbursement to request payments.

• Submit a Standard Form 269, Financial Status Report, and list expenditures according to agreed upon budget categories on a semi-annual basis. A semi-annual financial report is due within 45 days after the first 6-month project period and an annual financial report is due within 60 days after the second 6-month project period.

• Submit quarterly performance reports that compare accomplishments to the objectives; if established objectives are not met, discuss problems, delays, or other problems that may affect completion of the project; establish objectives for the next reporting period; and discuss compliance with any special conditions on the use of awarded funds.

• Maintain a financial management system that is acceptable to the Agency.

• Submit a final project performance report.

• Sign an agency approved cooperative agreement (an example of which is provided at the end of this notice).

In addition to the requirements provided in this notice, other Federal statutes and regulations apply to proposals considered for review and to our cooperative agreement awarded. These include, but are not limited to:

• 7 CFR part 15, subpart A, Nondiscrimination in Federally-Assisted Programs of the Department of Agriculture-Effectuation of Title VI of the Civil Rights Act of 1964;

• 7 CFR part 3015, Uniform Federal Assistance Regulations;

• 7 CFR parts 3016, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments;

• 7 CFR part 3017, Governmentwide Debarment and Suspension (Non-procurement);

• 7 CFR part 3018, New Restrictions on Lobbying;

• 7 CFR part 3019, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-profit Organizations;

• 7 CFR part 3021, Governmentwide Requirements for Drug-Free Workplace (Financial Assistance); and

• 7 CFR part 3052, Audits of States, Local Governments, and Non-Profit Organizations.

The Paperwork Reduction Act does not apply to this NOFA because the program does not receive applications from more than 10 persons covered by the 5 CFR 1320.3(c).

This Cooperative Agreement (Agreement) dated____, between________(Cooperator), and the United States of America, acting through the Farm Service Agency of the Department of Agriculture (the Agency), for $____ in cooperative agreement funds under the program, delineates the agreement of the parties.

Now, therefore, in consideration of the cooperative agreement;

The parties agree that:

(1) All the terms and provisions of the Notice entitled “Notice of Funds Availability (NOFA) Inviting Applications for the American Indian Credit Outreach Initiative,” published in the Federal Register on August 19, 2008 and the application submitted by the Cooperator for this Agreement, including any attachments or amendments, are incorporated and included as part of this Agreement. Any changes to these documents or this agreement must be approved in writing by the Agency.

(2) As a condition of the Agreement, the Cooperator certifies that it is in compliance with and will comply in the course of the Agreement with all applicable laws, regulations, Executive Orders, and other generally applicable requirements, including those contained in 7 CFR 3015.205(b), which are incorporated into this agreement by reference, and such other statutory provisions as are specifically contained herein. The Cooperator will comply with title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and Executive Order 12250.

(3) The provisions of 7 CFR part 3015, Uniform Federal Assistance Regulations, and 7 CFR part 3019, Uniform Administrative Requirements for Grants and Agreements with institutions of Higher Education, Hospitals, and Other Nonprofit Organizations, as applicable, are incorporated herein and made a part hereof by reference.

Further, the Cooperator agrees that it will:

(1) Not use cooperative agreement funds to plan, repair, rehabilitate, acquire, or construct a building or facility (including a processing facility); or to purchase, rent, or install fixed equipment.

(2) Use funds only for the purpose and activities specified in the proposal approved by the Agency including the approved budget. Any uses not provided for in the approved budget must be approved in writing by the Agency in advance of obligation by the Agency.

(3) Submit a Standard Form 269, Financial Status Report and list expenditures according to agreed upon budget categories on a semi-annual basis. Reports are due by April 30 and October 30 after the cooperative agreement is awarded.

(4) Provide periodic reports as required by the Agency. A financial status report and a project performance report will be required on a semi-annual basis. The financial status report must show how cooperative agreement funds have been used to date and project the funds needed and their purposes for the next quarter. A final report may serve as the last semi-annual report. Cooperators must constantly monitor performance to ensure that time schedules are being met and projected goals by time periods are being accomplished. The project performance reports must include the following:

a. A comparison of actual accomplishments to the objectives for that period.

b. Reasons why established objectives were not met, if applicable.

c. Reasons for any problems, delays, or adverse conditions which will affect attainment of overall program objectives, prevent meeting time schedules or objectives, or preclude the attainment of particular objectives during established time periods. This disclosure must be accomplished by a statement of the action taken or planned to resolve the situation.

d. Objectives and timetables established for the next reporting period.

e. The final report will also address the following:

(i) What have been the most challenging or unexpected aspects of this program?

(ii) What advice you would give to other organizations planning a similar program. These should include strengths and limitations of the program. If you had the opportunity, what would you have done differently?

(iii) If an innovative approach was used successfully, the cooperator should describe their program in detail so that other organizations might consider replication in their areas.

5. Provide Financial Management Systems which will include:

a. Records that identify adequately the source and application of funds for cooperative agreement supported activities. Those records must contain information pertaining to grant and cooperative agreement awards and authorizations, obligations, un-obligated balances, assets, liabilities, outlays, and income.

b. Effective control over and accountability for all funds, property, and other assets. Cooperator must adequately safeguard all such assets and ensure that they are used solely for authorized purposes.

c. Accounting records supported by source documentation.

6. Retain financial records, supporting documents, statistical records, and all other records pertinent to the cooperative agreement for a period of at least 3 years after closing, except that the records must be retained beyond the 3-year period if audit findings have not been resolved. Microfilm or photocopies or similar methods may be substituted in lieu of original records. The Agency and the Comptroller General of the United States, or any of their duly authorized representatives, must have access to any books, documents, papers, and records of the Cooperator that are pertinent to the specific cooperative agreement program for the purpose of making audits, examinations, excerpts, and transcripts.

7. Not encumber, transfer, or dispose of the equipment or any part thereof, acquired wholly or in part with Agency funds without the written consent of the Agency.

8. Not duplicate other program purposes for which monies have been received, are committed, or are applied to from other sources (public or private).

The Agency agrees to make funds available to the Cooperator under this Agreement in an amount not to exceed the amount indicated above. The funds will be reimbursed or advanced based on submission to the Agency by the Cooperator of a complete Standard Form 270.

Authorized and executed this day by:

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

The project purpose is to rehabilitate dam site 2 in order to extend the useful life of the structure and meet current dam safety criteria. The planned works of improvement include sediment removal from behind the dam and increasing the height of the auxiliary spillway.

The Notice of a Finding of No Significant Impact (FONSI) has been forwarded to the Environmental Protection Agency and to various Federal, State, and local agencies and interested parties. A limited number of copies of the FONSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment are on file and may be reviewed by contacting Dennis DeWeese, Acting State Conservationist, New York.

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

Under the Paperwork Reduction Act, 44 U.S.C. 3501 (2005) et seq. , OMB must approve all “collections of information” by Rural Development. The Act defines “collection of information” as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” (44 U.S.C. 3502(3)(A)) Because this NOFA will receive less than 10 respondents, the Paperwork Reduction Act does not apply.

This program is listed in the Catalog of Federal Domestic Assistance under Number 10.415.

The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2008 (Act) (Division A of Pub. L. 110-161, December 26, 2007) provided funding for, and authorizes Rural Development to, establish a revolving loan fund demonstration program for the preservation and revitalization of the Sections 515, 514 and 516 Multi-Family Housing portfolio. The Multi-Family Housing program is authorized by Sections 514, 515 and 516 of the Housing Act of 1949 and provides Rural Development the authority to make loans for low income Multi-Family Housing, farm labor housing, farm labor housing, and related facilities.

This NOFA requests applications from eligible applicants for loans to establish and operate revolving loan funds for the preservation of low-income MFH within the Rural Development Sections 515, 514 and 516 Multi-Family Housing portfolio. Rural Development's regulations for the section 514, 515 and 516 Multi-Family Housing Program are published at 7 CFR part 3560.

Housing that is constructed or repaired must meet the Rural Development design and construction standards and the development standards contained in 7 CFR part 1924, subparts A and C, respectively. Once constructed, Section 515 Multi-Family Housing must be managed in accordance with the program's management regulation, 7 CFR part 3560, subpart C. Tenant eligibility is limited to persons who qualify as a very low-, or low-, household or who are eligible under the requirements established to qualify for housing benefits provided by sources other than Rural Development, such as U.S. Department of Housing and Urban Development, Section 8 assistance or Low Income Housing Tax Credit assistance, when a tenant receives such housing benefits. Additional tenant eligibility requirements are contained in 7 CFR 3560.152.

The Act, made funding available for loans to private non-profit organizations, or such non-profit organizations' affiliate loan funds and State and local housing finance agencies, to carry out a housing demonstration program to provide revolving loans for the preservation of Sections 515, 514 and 516 Multi-Family Housing portfolio. The total amount of funding available for this program is $6,421,642.00. Loans to intermediaries under this demonstration program shall have an interest rate of no more than one percent and the Secretary of Agriculture may defer the interest and principal payment to Rural Development for up to three years during the first three years of the loan. The term of such loans shall not exceed 30 years. Funding priority will be given to entities with equal or greater matching funds from third parties, including housing tax credits for rural housing assistance and to entities with experience in the administration of revolving loan funds and the preservation of Multi-Family Housing.

(1) Eligibility requirements—Intermediary.

(a) The types of entities which may become intermediaries are private non-profit organizations, which may include faith based organizations, or such non-profit organizations' affiliate loan funds and State and local housing finance agencies.

(b) The intermediary must have:

(i) The legal authority necessary for carrying out the proposed loan purposes and for obtaining, giving security, and repaying the proposed loan.

(ii) A proven record of successfully assisting low-income Multi-Family Housing projects. Such record will include recent experience in loan making and loan servicing that is similar in nature to the loans proposed for the PRLF demonstration program and must provide documentation of a delinquency and loss rate not which does not exceed four percent. The applicant will be responsible for providing such information to Rural Development.

(iii) A staff with loan making and servicing experience.

(iv) A plan showing Rural Development, that the ultimate recipients will only use the funds to preserve low-income Multi-Family Housing projects which may include a purchase through a transfer and assumption of Sections 515, 514 and 516 housing.

(c) No loans will be extended to an intermediary unless:

(i) There is adequate assurance of repayment of the loan evidenced by the fiscal and managerial capabilities of the proposed intermediary.

(ii) The amount of the loan, together with other funds available, is adequate to complete the preservation or revitalization of the project.

(iii) At least 51 percent of the outstanding interest or membership in any non public body intermediary must be composed of citizens of the United States or individuals who reside in the United States after being legally admitted for permanent residence. The non public body intermediary will submit a self certifying letter of compliance with its application.

(iv) The intermediary's prior calendar year audit indicates an unqualified audited opinion which provides a statement relating to the accuracy of the financial statements.

(d) Intermediaries, and the principals of the intermediaries, must not be suspended, debarred, or excluded based on the “List of Parties Excluded From Federal Procurement and Nonprocurement Programs.” In addition, intermediaries and their principals must not be delinquent on Federal debt or be Federal judgments debtors.

(e) The intermediary and its principal officers (including immediate family) must have no legal or financial interest in the ultimate recipient.

(f) The intermediary's Debt Service Coverage Ratio (DSCR) must be greater than 1.25 for the fiscal year immediately prior to the year of application. The DSCR is the financial ratio the loan committee will use to determine an applicant's capacity to borrow and service additional debt.

The loan committee will use Earnings Before Interest and Taxes (EBIT) to determine DSCR. EBIT is determined by adding net income or net loss to depreciation and interest expense. The loan committee will compare the principal and interest payment multiplied by the DSCR to the EBIT derived from the applicant's consolidated income statement. For example, if an applicant requests a loan amount of $2,000,000 at a one percent interest rate amortized over 30 years, the principal and interest payments will be $77,193, annually. Therefore, an applicant who requests $2,000,000 needs an EBIT of at least $96,491.00 ($77,193 × 1.25). Only debt service from unrestricted revolving loans will be considered in the above calculation. An unrestricted loan is an account in which the accumulated revenues are not dictated by a donor or sponsor.

Only eligible applicants will be scored and ranked. Funding priority will be given to entities with equal or greater matching funds, including housing tax credits for rural housing assistance. Refer to the Selection Criteria section of the NOFA for further information on funding priorities.

(g) Intermediaries that have received one or more PRLF loans may apply for and be considered for subsequent PRLF loans provided.

(h) At least 80 percent of each of an intermediary's PRLF loans must have been disbursed to eligible ultimate recipients.

(i) Intermediaries requesting subsequent loans must meet the requirements of section III (2) of this NOFA.

(j) The delinquency rate of the outstanding loans of the intermediary's PRLF revolving fund do not exceed 4 percent.

(k) The intermediary is in compliance with all applicable regulations and its loan agreements with Rural Development.

(l) Subsequent loans will not exceed $1 million each and not more than one loan will be approved by Rural Development for an intermediary in any single fiscal year unless the request is authorized by a PRLF appropriation.

(m) Total outstanding PRLF indebtedness of an intermediary to Rural Development will not exceed $15 million at any time.

(2) Eligibility requirements—Ultimate recipients.

(a) To be eligible to receive loans from the PRLF, ultimate recipients must:

(i) Currently have a Rural Development Section 515, 514 loans and 516 grant for the property to be assisted by the PRLF demonstration program, or be a transferee of such a loan before receiving any benefits from the PRLF demonstration program.

(ii) Be unable to provide funding to preserve and revitalize existing Sections 515, 514 or 516 properties from its own resources and, except for State or local public agencies and Indian tribes, be unable to obtain the necessary credit from other sources upon terms and conditions the applicant could reasonably be expected to fulfill.

(iii) Certify that the ultimate recipient along with its principal officers (including their immediate family), hold no legal or financial interest or in the intermediary.

(iv) Be in compliance with all Rural Development program requirements or have an Agency approved workout plan in place which will correct a non-compliance status.

(b) Any delinquent debt to the Federal Government including a non-tax judgment lien, by the ultimate recipient or any of its principals, shall cause the proposed ultimate recipient to be ineligible to receive a loan from the PRLF. PRLF loan funds may not be used to satisfy the delinquency. The ultimate recipient cannot be currently debarred or suspended from Federal Government programs.

(1) In accordance with the Fair Housing Act, Title VI of the Civil Rights Act of 1964, the Equal Credit Opportunity Act, the Age Discrimination Act of 1975, Executive Order 12898, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973, neither the intermediary nor Rural Development will discriminate against any employee, proposed intermediary or proposed ultimate recipient on the basis of sex, marital status, race, familial status, color, religion, national origin, age, physical or mental disability (provided the proposed intermediary or proposed ultimate recipient has the capacity to contract), because all or part of the proposed intermediary's or proposed ultimate recipient's income is derived from public assistance of any kind, or because the proposed intermediary or proposed ultimate recipient has in good faith exercised any right under the Consumer Credit Protection Act, with respect to any aspect of a credit transaction anytime Rural Development loan funds are involved.

(2) The policies and regulations contained in 7 CFR part 1901, subpart E apply to this program.

(3) The Rural Housing Service (RHS) Administrator will assure that equal opportunity and nondiscrimination requirements are met in accordance with the Fair Housing Act, Title VI of the Civil Rights Act of 1964, the Equal Credit Opportunity Act, the Age Discrimination Act of 1975, Executive Order 12898, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973.

(4) All housing must meet the accessibility requirements found at 7 CFR 3560.60(d).

(1) The following policies and regulations apply to loans to intermediaries made in response to this NOFA:

(a) PRLF intermediaries will be required to provide Rural Development with the following reports:

(i) An annual audit;

(A) The dates of the audit report period need not coincide with other reports on the PRLF. Audit reports shall be due 90 days following the audit period. Audits must cover all of the intermediary's activities. Audits will be performed by an independent certified public accountant. An acceptable audit will be performed in accordance with Generally Accepted Government Auditing Standards (GAGAS) and include such tests of the accounting records as the auditor considers necessary in order to express an unqualified audited opinion on the financial condition of the intermediary.

(B) It is not intended that audits required by this program be separate from audits performed in accordance with State and local laws or for other purposes. To the extent feasible, the audit work for this program should be done in connection with these other audits. Intermediaries covered by Office Management Budget Circular A-133 should submit audits made in accordance with that circular.

(ii) Quarterly or semiannual performance reports (due to Rural Development 30 days after the end of the fiscal quarter or half);

(A) Performance reports will be required quarterly during the first year after loan closing. Thereafter, reports will be required semiannually. Also, Rural Development may resume requiring quarterly reports if the intermediary becomes delinquent in repayment of its loan or otherwise fails to fully comply with the provisions of its workout plan or Loan Agreement, or Rural Development determines that the intermediary's PRLF is not adequately protected by the current financial status and paying capacity of the ultimate recipients.

(B) These reports shall contain information only on the PRLF, or if other funds are included, the PRLF portion shall be segregated from the others; and in the case where the intermediary has more than one PRLF from Rural Development, a separate report shall be made for each PRLF.

(C) The reports will include OMB Standard Form 269, Financial Status Report and OMB Standard Form 272, Federal Cash Transaction Report. These reports will provide information on the intermediary's lending activity, income and expenses, financial condition and a summary of names and characteristics of the ultimate recipients the intermediary has financed.

(iii) Annual proposed budget for the following year; and

(iv) Other reports as Rural Development may require from time to time regarding the conditions of the loan.

(b) Security will consist of a pledge by the intermediary of all assets now or hereafter placed in the PRLF, including cash and investments, notes receivable from ultimate recipients, and the intermediary's security interest in collateral pledged by ultimate recipients. Except for good cause shown, Rural Development will not obtain assignments of specific assets at the time a loan is made to an intermediary or ultimate recipient. The intermediary will covenant that, in the event the intermediary's financial condition deteriorates or the intermediary takes action detrimental to prudent fund operation or fails to take action required of a prudent lender, the intermediary will provide additional security, execute any additional documents, and undertake any reasonable acts Rural Development may request to protect Rural Development's interest or to perfect a security interest in any asset, including physical delivery of assets and specific assignments to Rural Development. All debt instruments and collateral documents used by an intermediary in connection with loans to ultimate recipients may be assignable.

(c) RHS may consider, on a case by case basis, subordinating its security interest on the ultimate recipient's property to the lien of the intermediary so that Rural Development has a junior lien interest when an independent appraisal verifies the Rural Development subordinated lien will continue to be fully secured.

(d) The term of the loan to an ultimate recipient may not exceed the remaining term of the Rural Development loan.

(e) When loans are made to ultimate recipients for equity purposes, restrictive-use provisions must be incorporated, as outlined in 7 CFR part 3560.662.

(f) The policies and regulations contained in 7 CFR part 1901, subpart F regarding historical and archaeological properties apply to all loans funded under this NOFA.

(g) The policies and regulations contained in 7 CFR part 1940, subpart G regarding environmental assessments apply to all loans to ultimate recipients funded under this NOFA. Loans to intermediaries under this program will be considered a categorical exclusion under the National Environmental Policy Act, requiring the completion of Form RD 1940-22, “ Environmental Checklist for Categorical Exclusions ,” by Rural Development.

(h) An “Intergovernmental Review,” will be conducted in accordance with the procedures contained in 7 CFR part 3015, subpart V, if the applicant is a cooperative.

(1) The intermediary agrees to the following:

(a) To obtain written Rural Development approval, before the first lending of PRLF funds to an ultimate recipient, of:

(i) All forms to be used for relending purposes, including application forms, loan agreements, promissory notes, and security instruments; and

(ii) The intermediary's policy with regard to the amount and form of security to be required.

(b) To obtain written approval from Rural Development before making any significant changes in forms, security policy, or the intermediary's workout plan. Rural Development may approve changes in forms, security policy, or workout plans at any time upon a written request from the intermediary and determination by Rural Development that the change will not jeopardize repayment of the loan or violate any requirement of this NOFA or other Rural Development regulations. The intermediary must comply with the workout plan approved by Rural Development so long as any portion of the intermediary's PRLF loan is outstanding;

(c) To allow Rural Development to take a security interest in the PRLF, the intermediary's portfolio of investments derived from the proceeds of the loan award, and other rights and interests as Rural Development may require;

(d) To return, as an extra payment on the loan any funds that have not been used in accordance with the intermediary's workout plan by a date two years from the date of the loan agreement. The intermediary acknowledges that Rural Development may cancel the approval of any funds not yet delivered to the intermediary if funds have not been used in accordance with the intermediary's workout plan within the two year period. Rural Development, at its sole discretion, may allow the intermediary additional time to use the loan funds by delaying cancellation of the funds by not more than three additional years. If any loan funds have not been used by five years from the date of the loan agreement, the approval will be canceled for any funds that have not been delivered to the intermediary and the intermediary will return, as an extra payment on the loan, any funds it has received and not used in accordance with the workout plan. In accordance with the Rural Development approved promissory note, regular loan payments will be based on the amount of funds actually drawn by the intermediary.

(3) The intermediary will be required to enter into a Rural Development approved loan agreement and promissory note. The intermediary will receive a 30-year loan at a one percent interest rate. The loan can be deferred for up to three years.

(4) Loans made to the PRLF ultimate recipient must meet the intent of providing decent, safe, and sanitary rural housing and be consistent with the requirements of Title V of the Housing Act of 1949.

(5) When an intermediary proposes to make a loan from the PRLF to an ultimate recipient, Rural Development concurrence is required prior to final approval of the loan. The intermediary must submit a request for Rural Development concurrence of a proposed loan to an ultimate recipient. Such request must include:

(a) Certification by the intermediary that:

(i) The proposed ultimate recipient is eligible for the loan;

(ii) The proposed loan is for eligible purposes;

(iii) The proposed loan complies with all applicable statutes and regulations; and

(iv) Prior to closing the loan to the ultimate recipient, the intermediary and its principal officers (including immediate family) hold no legal or financial interest in the ultimate recipient, and the ultimate recipient and its principal officers (including immediate family) hold no legal or financial interest in the intermediary.

(b) Copies of sufficient material from the ultimate recipient's application and the intermediary's related files, to allow Rural Development to determine the:

(i) Name and address of the ultimate recipient;

(ii) Loan purposes;

(iii) Interest rate and term;

(iv) Location, nature, and scope of the project being financed;

(v) Other funding included in the project;

(vi) Nature and lien priority of the collateral; and

(vii) Environmental impacts of this action. This will include an original Form RD 1940-20, “ Request for Environmental Information ,” completed and signed by the intermediary. Attached to this form will be a statement stipulating the age of the building to be rehabilitated and a completed and signed FEMA Form 81-93, “ Standard Flood Hazard Determination .” If the age of the building is over 50 years or if the building is either on or eligible for inclusion in the National Register of Historic Places, then the intermediary will immediately contact Rural Development to begin Section 106 consultation with the State Historic Preservation Officer. If the building is located within a 100-year flood plain, then the intermediary will immediately contact Rural Development to analyze any effects as outlined in 7 CFR part 1940, subpart G, exhibit C. The intermediary will assist Rural Development in any additional requirements necessary to complete the environmental review.

(c) Such other information as Rural Development may request on specific cases.

(6) Upon receipt of a request for concurrence in a loan to an ultimate recipient Rural Development will:

(a) Review the material submitted by the intermediary for consistency with Rural Development's preservation and revitalization principles which include the following:

(i) There is a continuing need for the property in the community as affordable housing. If Rural Development determines there is no continuing need for the property the ultimate recipient is ineligible for the loan;

(ii) When the transaction is complete, the property will be owned and controlled by eligible Section 515 borrowers;

(iii) The transaction will address the physical needs of the property;

(iv) Existing tenants will not be displaced because of increased post transaction rents;

(v) Post transaction basic rents will not exceed comparable market rents; and

(vi) Any equity loan amount will be supported by a market value appraisal.

(b) Issue a letter concurring with the loan when all requirements have been met or notify the intermediary in writing the reasons for denial when Rural Development determines it is unable to concur with the loan.

The application process will be in two steps: First, all applicants will submit proposals to the National Office for loan committee review. The initial loan committee will determine if the borrower is eligible, score, and rank the applicants according to the criteria established in this NOFA. Only eligible borrowers will be scored. The loan committee will select proposals for further processing. In the event that a proposal is selected for further processing and the applicant declines, the next highest ranked unfunded applicant may be selected.

Second, after the loan is obligated to the intermediary but prior to the loan closing, the State Office in the applicant's residence or State where the applicant will be doing its intermediary work will provide written approval of all forms to be used for relending purposes, including application forms, loan agreements, promissory notes, and security instruments. Additionally, the State Office will provide written approval of the applicant's binding policy with regard to the amount and form of security to be required.

If an application is accepted for further processing and the loan closed, the applicant will be required to submit and comply with the terms of its workout plan which describes how the money will be used, the loan agreement, the promissory note and any other loan closing documents. At the time of loan closing, Rural Development and loan recipient shall enter into a loan agreement and a promissory note acceptable to Rural Development.

The application must contain the following:

(1) A summary page, that is double-spaced and not in narrative form, that lists the following items:

(a) Applicant's name.

(b) Applicant's Taxpayer Identification Number.

(c) Applicant's address.

(d) Applicant's telephone number.

(e) Name of applicant's contact person, telephone number, and address.

(f) Amount of loan requested.

(2) Form RD 4274-1, “ Application for Loan (Intermediary Relending Program ).”

(3) A written workout plan and other evidence Rural Development requires to demonstrate the feasibility of the intermediary's program to meet the objectives of this demonstration program. The plan must, at a minimum:

(a) Document the intermediary's ability to administer this demonstration program in accordance with the provisions of this NOFA. In order to adequately demonstrate the ability to administer the program, the intermediary must provide a complete listing of all personnel responsible for administering this program along with a statement of their qualifications and experience. The personnel may be either members or employees of the intermediary's organization or contract personnel hired for this purpose. If the personnel are to be contracted for, the contract between the intermediary and the entity providing such service will be submitted for Rural Development review, and the terms of the contract and its duration must be sufficient to adequately service Rural Development loan through to its ultimate conclusion. If Rural Development determines the personnel lack the necessary expertise to administer the program, the loan request will be denied;

(b) Document the intermediary's ability to commit financial resources under the control of the intermediary to the establishment of the demonstration program. This should include a statement of the sources of non-Rural Development funds for administration of the intermediary's operations and financial assistance for projects;

(c) Demonstrate a need for loan funds. As a minimum, the intermediary should identify a sufficient number of proposed and known ultimate recipients to justify Agency funding of its loan request, or include well developed targeting criteria for ultimate recipients consistent with the intermediary's mission and strategy for this demonstration program, along with supporting statistical or narrative evidence that such prospective recipients exist in sufficient numbers to justify Rural Development funding of the loan request;

(d) Include a list of proposed fees and other charges it will assess to the ultimate recipients;

(e) Provide documentation to Rural Development the intermediary has secured commitments of significant financial support from public agencies and private organizations or have received tax credits for the calendar year prior to this NOFA;

(f) Include the intermediary's plan (specific loan purposes) for relending the loan funds. The plan must be of sufficient detail to provide Rural Development with a complete understanding of what the intermediary will accomplish by lending the funds to the ultimate recipient and the complete mechanics of how the funds will flow from the intermediary to the ultimate recipient. The service area, eligibility criteria, loan purposes, fees, rates, terms, collateral requirements, limits, priorities, application process, method of disposition of the funds to the ultimate recipient, monitoring of the ultimate recipient's accomplishments, and reporting requirements by the ultimate recipient's management must at least be addressed by the intermediary's relending plan;

(g) Provide a set of goals, strategies, and anticipated outcomes for the intermediary's program. Outcomes should be expressed in quantitative or observable terms such as low-income housing complexes rehabilitated or low-income housing units preserved, and should relate to the purpose of this demonstration program; and

(h) Provide specific information as to whether and how the intermediary will ensure that technical assistance is made available to ultimate recipients and potential ultimate recipients. Describe the qualifications of the technical assistance providers, the nature of technical assistance that will be available, and expected and committed sources of funding for technical assistance. If other than the intermediary itself, describe the organizations providing such assistance and the arrangements between such organizations and the intermediary.

(4) A pro forma balance sheet at start-up and projected balance sheets for at least three additional years; and projected cash flow and earnings statements for at least three years supported by a list of assumptions showing the basis for the projections. The projected earnings statement and balance sheet must include one set of projections that shows the PRLF must extend to include a year with a full annual installment on the PRLF loan.

(5) A written agreement of the intermediary to Rural Development agreeing to the audit requirements.

(6) Form RD 400-4, “ Assurance Agreement .”

(7) Complete organizational documents, including evidence of authority to conduct the proposed activities.

(8) Latest unqualified audit report.

(9) Form RD 1910-11, “ Applicant Certification Federal Collection Policies for Consumer or Commercial Debts .”

(10) Form AD-1047, “ Certification Regarding Debarment, Suspension, and other Responsibility Matters—Primary Covered Transactions .”

(11) Exhibit A-1 of RD Instruction 1940-Q, “ Certification for Contracts, Grants, and Loans. ”

(12) Copies of the applicant's tax returns for each of the three years prior to the year of application, and most recent audited financial statements.

(13) A separate one-page information sheet listing each of the “Selection the Applicants' Criteria” contained in this NOFA, followed by the page numbers of all relevant material and documentation that is contained in the proposal that supports these criteria. Applicants are also encouraged, but not required; to include a checklist of all of the application requirements and to have their application indexed and tabbed to facilitate the review process.

(14) Consolidated financial statements for the year prior to this NOFA.

(15) A borrower authorization statement allowing Rural Development the authorization to verify past and present earnings with the preparer of the intermediary's financial statements.

No loans made to a single intermediary applicant under this demonstration program may not exceed $2,125,000 and any such loan may be limited by geographic area so that multiple loan recipients are not providing similar services to the same service areas. All PRLF loans will have an obligation expiration period of two years from the date of obligation.

All PRLF loans will have an obligation expiration period of two years from the date of obligation. Prior fiscal years PRLF loans that were obligated and not closed within the above obligation period must be de-obligated to allow more immediate program use unless a six month extension is granted by the National Office.

Loans made to the PRLF ultimate recipient must meet the intent of providing decent, safe, and sanitary rural housing and be consistent with the requirements of Title V of the Housing Act of 1949, as amended.

Submission address. Applications should be submitted to USDA Rural Housing Service; Attention: Henry Searcy, Jr., Senior Loan Specialist, Multi-Family Housing Processing Division STOP 0781 (Room 1263-S), or Bonnie Edwards-Jackson, Senior Loan Specialist, Multi-Family Housing Processing Division, STOP 0781 (Room 1239-S), U.S. Department of Agriculture, Rural Housing Service, 1400 Independence Avenue, SW., Washington, DC 20250-0781 or by telephone at (202) 720-1753 or (202) 690-0759 , TDD (302) 857-3585 or via e-mail, Henry.Searcy@wdc.usda.gov or Bonnie.Edwards@wdc.usda.gov. (Please note the phone numbers are not toll free numbers.)

All applications will be evaluated by a loan committee. The loan committee will make recommendations to the Rural Housing Service Administrator concerning preliminary eligibility determinations and for the selection of applications for further processing based on the selection criteria contained in this NOFA and the availability of funds. The Administrator will inform applicants of the status of their application within 30 days of the loan application closing date set forth in this NOFA.

Selection criteria points will be allowed only for factors evidenced by well documented, reasonable plans which provide assurance that the items have a high probability of being accomplished. The points awarded will be as specified in paragraphs (1) through (4) of this section. In each case, the intermediary's application must provide documentation that the selection criteria have been met in order to qualify for selection criteria points. If an application does not cover one of the categories listed, it will receive no points for that criteria.

(1) Other funds. Points allowed under this paragraph are to be based on documented successful history or written evidence that the funds are available.

(a) The intermediary will obtain non-Rural Development loan or grant funds or provide housing tax credits (measured in dollars) to pay part of the cost of the ultimate recipients' project cost. The Intermediary shall pledge as collateral its PRLF Revolving Fund, including its portfolio of investments derived from the proceeds of other funds and this loan award. Points for the amount of funds from other sources are as follows:

(i) At least 10 percent but less than 25 percent of the total development cost (as defined in 7 CFR part 3560 Section 3560.11)—5 points;

(ii) At least 25 percent but less than 50 percent of the total project cost—10 points; or

(iii) 50 percent or more of the total project cost—15 points.

(b) The intermediary will provide loans to the ultimate recipient from its own funds (not loan or grant) to pay part of the ultimate recipients' project cost. The amount of the intermediary's own funds will average:

(i) At least 10 percent but less than 25 percent of the total development costs—5 points;

(ii) At least 25 percent but less than 50 percent of total development costs—10 points; or

(iii) 50 percent or more of total development costs—15 points.

(2) Intermediary contribution. The Intermediary will contribute its own funds not derived from Rural Development. The non-Rural Development contributed funds will be placed in a separate account from the PRLF loan account. The intermediary shall contribute funds not derived from Rural Development into a separate bank account or accounts according to their “workout plan”. These funds are to be placed into an interest bearing counter-signature-account for three years. The counter-signature-account will require a signature from a Rural Development employee and intermediary. After three years, these funds shall be commingled with the PRLF to provide loans to the ultimate recipient for the preservation and revitalization of Section 515 Multi-Family Housing.

The amount of non-Agency derived funds contributed to the PRLF will equal the following percentage of Rural Development PRLF loan:

(a) At least 5 percent but less than 15 percent—15 points;

(b) At least 15 percent but less than 25 percent—30 points; or

(c) 25 percent or more—50 points.

(3) Experience. The intermediary has actual experience in the administration of revolving loan funds and the preservation of Multi-Family Housing, with a successful record, for the following number of full years. Applicants must have actual experience in both the administration of revolving loan funds and the preservation of Multi-Family Housing in order to qualify for points under the selection criteria. If the number of years of experience differs between the two types of above listed experience, the type of experience with the lesser number of years will be used for the selection criteria.

(a) At least one but less than three years—5 points;

(b) At least three but less than five years—10 points;

(c) At least five but less than 10 years—20 points; or

(d) 10 or more years—30 points.

(4) Administrative. The Administrator may assign up to 25 additional points to an application to account for the following items not adequately covered by the other priority criteria set out in this section. The items that will be considered are the amount of funds requested in relation to the amount of need; a particularly successful affordable housing development record; a service area with no other PRLF coverage; a service area with severe affordable housing problems; a service area with emergency conditions caused by a natural disaster; an innovative proposal; the quality of the proposed program; economic development plan from the local community, particularly a plan prepared as part of a request for an Empowerment Zone/Enterprise Community designation; or excellent utilization of an existing revolving loan fund program. The Administrator will document the reasons for the particular point allocation.

All adverse determinations regarding applicant eligibility and the awarding of points as part of the selection process are appealable. Instructions on the appeal process will be provided at the time an applicant is notified of the adverse action.

To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender. The U.S. Department of Agriculture prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.)

Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

On January 28, 2008, the Department of Commerce (the Department) published the notice of initiation of the administrative review of the antidumping duty order on ASTM A-312 stainless steel pipe from South Korea. See Initiation of Antidumping and Countervailing Duty Administrative Reviews See 73 FR 4829 (January 28, 2008). The period of review is December 1, 2006 through November 30, 2007. The preliminary results of this administrative review are currently due no later than September 1, 2008.

Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), and section 351.213(h)(1) of the Department's regulations require the Department to issue the preliminary results of a review within 245 days after the last day of the anniversary month of the order or suspension agreement for which the administrative review was requested, and final results of the review within 120 days after the date on the which the notice of the preliminary results is published in the Federal Register . However, if the Department determines that it is not practicable to complete the review within the aforementioned specified time limits, section 751(a) (3)(A) of the Act and section 351.213(h)(2) of the Department's regulations allow the Department to extend the 245-day period to 365 days and to extend the 120-day period to 180 days.

The Department needs additional information regarding SeAH's cost of production and additional time to analyze this information. Therefore, the Department finds that it is not practicable to complete the preliminary results of the review within the original time limit and is extending the deadline for the completion of the preliminary results of the antidumping duty order on welded ASTM A-312 stainless steel pipe from South Korea by 107 days from September 1, 2008 to December 17, 2008.

This notice is issued and published pursuant to sections 751(a)(3)(A) and 777(i)(1) of the Act.

Established in 1975 as the Nation's first marine sanctuary, the Monitor National Marine Sanctuary is managed by NOA's Office of National Marine Sanctuaries. It is one of 13 sanctuaries and protects the wreck of the famed Civil War ironclad, USS Monitor, best known for its battle with the Confederate ironclad, CSS Virginia in Hampton Roads, Va., on March 9, 1862.

The advisory council consists of 12 members and 3 alternates: 8 non-governmental voting members and 4 governmental voting members. The council seats represent a variety of regional interests and stakeholders, including: Recreational Diving, Heritage Tourism, Education, Maritime Museums, Conservation, the U.S. Navy, Virginia and North Carolina Department of Historic Resources, the National Park Service and the public at-large. It is the combined expertise and experience of these individuals that creates an advisory council that is a valuable and effective resource for the sanctuary manager.

The council's objectives are to provide the sanctuary manager with advice on: (1) Protecting natural and cultural resources, and identifying and evaluating emergent or critical issues involving sanctuary use or resources; (2) identifying and realizing the sanctuary's research objectives; (3) identifying and realizing educational opportunities to increase public knowledge and stewardship of the sanctuary environment; and (4) developing an informed constituency to increase awareness and understanding of the purpose and value of the sanctuary and the National Marine Sanctuary System.

The council may serve as a forum for consultation and deliberation among its members and as a source of advice to the sanctuary manager regarding the management of the Monitor National Marine Sanctuary. The sanctuary advisory council holds open meetings to ensure continued public input on management issues and to increase public awareness and knowledge of the sanctuary environment. Public participation at these meetings is welcomed and encouraged.

The Corps and the State of Minnesota will jointly prepare the DEIS. The Corps is the lead federal agency and the Minnesota Department of Natural Resources (MnDNR) is the lead state agency. To determine issues to be addressed in the DEIS, a scoping process will be conducted. The MnDNR, with assistance from the Corps, will prepare and release to the public a Draft Scoping Decision Document (Draft SDD) and a Scoping Environmental Assessment Worksheet (SEAW). Federal, state, and local agencies; the general public; interested private organizations and parties; and affected Native American tribes will have 30 days to provide comments on those two documents. During the 30-day public comment period, the Corps and the MnDNR will jointly conduct a public scoping meeting. The meeting will be held on Wednesday, September 3, 2008, from 6 p.m. to 9 p.m. at the Aurora Community Center at 15 West 1st Avenue North, Aurora, MN. The MnDNR, with assistance from the Corps will prepare and release to the public a Final SDD based upon the comments received during the scoping process. Significant issues and resources identified in the Final SDD will be addressed in the DEIS.

The DEIS will assess impacts of the proposed action and reasonable alternatives, identify and evaluate mitigation alternatives, and discuss potential environmental monitoring. Anyone who has an interest in participating in the development of the DEIS is invited to contact the St. Paul District, Corps of Engineers. Major issues identified to date for discussion in the DEIS are the impacts of the proposed project on:

1. Fish, wildlife, and ecologically sensitive resources.

2. Water resources, including: surface and groundwater resources; waters of the U.S., including wetlands; and receiving stream geomorphology.

3. Water quality, including: surface water runoff; and storm water management.

4. Air quality.

5. Cumulative impacts, including: wildlife habitat loss/fragmentation and habitat corridor obstruction/landscape barriers; wetlands in the Partridge River watershed; loss of threatened and endangered plant species; air quality in federally-administered Class I areas; air quality in Class II areas; water quality; streamflow and lake level changes; and socioeconomic impacts.

Issuing a permit for the reopening of an open pit taconite mine and the construction and operation of a taconite ore concentration facility is considered to be a major Federal action that may have a significant impact on the quality of the human environment. The project: (1) would have a significant adverse effect on wetlands (which are special aquatic sites), and (2) has the potential to significantly affect water quality, groundwater, air quality, fish, and wildlife. Our environmental review will be conducted to meet the requirements of the National Environmental Policy Act of 1969, National Historic Preservation Act of 1966, Council of Environmental Quality Regulations, Endangered Species Act of 1973, Section 404 of the Clean Water Act, and other applicable laws and regulations.

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 IC Clearance Official, Regulatory Information Management Services, Office of Management, 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.

Type of Review: Extension.

Title: National Longitudinal Transition Study-2 (NLTS2) Wave 5 Interviews and Questionnaires.

Frequency: Biennially.

Affected Public: Individuals or household.

Reporting and Recordkeeping Hour Burden:

  Responses: 3,912.

  Burden Hours: 1,423.

Abstract: This ICR is for Wave 5 data collection for the National Longitudinal Transition Study-2 (NLTS2). NLTS2 began in 2000 with a sample of approximately 12,000 youth who were 13 through 16 years old and receiving special education services. Wave 5 data collection will take place in the 9th year of the project and will consist of parent and youth interviews conducted by phone or mail. This will be the last round of data collection for NLTS2 and will focus primarily on early adulthood, including postsecondary education, employment, and community adjustment.

Requests for copies of the information collection submission for OMB review may be accessed from http://edicsweb.ed.gov , by selecting the “Browse Pending Collections” link and by clicking on link number 3698. When you access the information collection, click on “Download Attachments “ to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to ICDocketMgr@ed.gov or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request.

Comments regarding burden and/or the collection activity requirements should be electronically mailed to ICDocketMgr@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.

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 IC Clearance Official, Regulatory Information Management Services, Office of Management, 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: Information Collection for College.gov Account Registration and Inspirational Message Features.

Frequency: On occasion.

Affected Public: Individuals or household.

Reporting and Recordkeeping Hour Burden:

  Responses: 54,000.

  Burden Hours: 8,100.

Abstract: College.gov's target audience is 9th-12th grade high school students with a focus on students from underrepresented populations. The purpose for including the account registration and inspirational message features in college.gov is to enhance the interactivity and engagement aspects of the site. These features are critical for fully engaging students in the site, for keeping their interest and attention, and for providing inspiration and hope to students (especially to underrepresented populations) that a postsecondary education is possible. The features also support the peer-to-peer aspect of the site and provide relatable role models of students “Just like them” that can show that higher education is possible for all students. Web site users have the option of registering with college.gov. In order to register, a user selects the registration link, inputs six data elements and, after providing consent to the site's terms and conditions, submits that information to the Department. Once the account registration process is completed, the user has the option of creating their own inspirational message by uploading a photo and adding their “I'm Going” statement about why they want to pursue education beyond high school. The inspirational message (hereafter “billboard”) is saved within college.gov and can be shared with others. After a user creates a billboard, they can choose to: (1) Have their billboard featured on college.gov's home page (visitors can browse through approved user-generated billboards); (2) send their family, friends and other supporters a link to the college.gov home page with their billboard; (3) add a tool to their Facebook profile that displays their billboard and lets their friends provide messages of support and encouragement; or (4) add the billboard to any of their other Web sites.

Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov, by selecting the “Browse Pending Collections” link and by clicking on link number 3803. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to ICDocketMgr@ed.gov or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request.

Comments regarding burden and/or the collection activity requirements should be electronically mailed to ICDocketMgr@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.

By Delegation Order No. 00-037.00, effective December 6, 2001, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to the Administrator of the Western Area Power Administration, (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy, and (3) the authority to confirm, approve, and place into effect on a final basis, to remand, or to disapprove such rates to the Federal Energy Regulatory Commission (FERC).

The existing formula rates contained under Rate Order No. WAPA-115 1 became effective on January 1, 2005, and were approved for 4 years and 9 months through September 30, 2009. Subsequent to Rate Order No. WAPA-115, Western completed a minor rate adjustment, Rate Order No. WAPA-128, 2 which removed the reactive power costs from the Transmission Revenue Requirement and recovered these costs in the Power Revenue Requirement. This rate adjustment modified the formula rates associated with power and transmission service for the CVP and transmission service on the COTP and PACI. WAPA-128 became effective on September 1, 2006, and was approved for a period of 3 years and 1 month. Both rate orders (WAPA-115 and WAPA-128) expire on September 30, 2009. Western is extending the existing formula rates for power, transmission, and ancillary services on the CVP, transmission service on the COTP, transmission service on the PACI, third-party transmission service, and the Path 15 revenue requirement methodology in accordance with 10 CFR part 903.23(b). Western seeks this extension to provide sufficient time for an informal rate process which will allow Western to meet and collaborate with its customers on the development of rates to replace the current rates. This extension allows Western and its customers the opportunity to evaluate the impacts of proposed market and industry initiatives, such as the California Independent System Operator's (CAISO) Market Redesign and Technology Upgrade (MRTU) and FERC Orders 890 and 890A, on the existing rate designs. The existing formula rate methodology collects annual revenue sufficient to recover annual expenses (including interest) and capital requirements, thus ensuring repayment of the project within the cost recovery criteria set forth in DOE Order RA 6120.2. This extension will permit a concurrent public process and rate approval period for the formula rates for power, transmission, and ancillary services for the CVP, transmission service on the COTP, transmission service on the PACI, and third-party transmission service through September 30, 2011. Upon its approval, Rate Order No. WAPA-115 and Rate Order No. WAPA-128 will be extended under Rate Order No. WAPA-139.

Western did not have a consultation and comment period and did not hold public information and comment forums which, in accordance with 10 CFR part 903.23(b), are not required. Following review of Western's proposal within the DOE, I hereby approve Rate Order No. WAPA-139 which extends the existing formula rates for the power, transmission, and ancillary services for the CVP, transmission service for the COTP, transmission service for the PACI, and third-party transmission service through September 30, 2011. This approval also extends Western's recovery of the Path 15 revenue requirement through the same time period.

By Delegation Order No. 00-037.00, effective December 6, 2001, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to the Administrator of the Western Area Power Administration (Western); (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand, or to disapprove such rates to the Federal Energy Regulatory Commission (FERC).

The existing formula rates approved under Rate Order No. WAPA-106  1 became effective on March 1, 2004, and are approved through February 28, 2009. Subsequently, Rate Schedule L-AS3, Regulation and Frequency Response, was revised and approved under Rate Order No. WAPA-118 and became effective June 1, 2006, and is approved through May 31, 2011. 2 Western is proposing to extend the existing LAP transmission and ancillary services formula rates pursuant to 10 CFR part 903.23 (b). The existing LAP rate formula methodology collects annual revenue sufficient to recover annual expenses, including interest and capital requirements, thus ensuring repayment of the project within the cost recovery criteria set forth in DOE order RA 6120.2. Western is seeking this extension to provide more time for the evaluation of new rate requirements for transmission and ancillary services mandated under FERC Order 890 and the evaluation of adjustments to the formulae for ancillary services. For these reasons, Western is extending the existing rate formulae for transmission and ancillary services through February 28, 2011.

Western did not have a consultation and comment period and did not hold public information and comment forums, in accordance with 10 CFR part 903.23(b). Following review of Western's proposal with the DOE, I hereby approve Rate Order No. WAPA-141 which extends the existing LAP transmission and ancillary services rate schedules L-NT1, L-FPT1, L-NFPT1, L-AS1, L-AS2, L-AS4, L-AS5, L-AS6 and L-AS7 through February 28, 2011.

FDA is announcing an opportunity to participate in a pilot project that involves the ongoing development and testing of a repository for standardized clinical study data (the Janus study data warehouse). This pilot will test the electronic receipt, processing, and storage of standardized clinical study data, including the successful validation and loading of data into the Janus study repository and subsequent access of that data by reviewers using a combination of analytical and visualization tools. The Janus study data repository is the data warehouse component of a common, standards-based infrastructure that is being developed jointly by FDA and the NCI to support the exchange of clinical research data. Janus is designed to enhance the agency's capability to manage and review standardized study data.

CDER has been accepting voluntary electronic submissions of standardized clinical study data since July 2004. 1 Applicants wishing to provide clinical study data in standardized format are advised to follow the Study Data Tabulation Model (SDTM) defined by the Clinical Data Interchange Standards Consortium (CDISC). CDISC is an open, multidisciplinary, nonprofit organization that has established worldwide industry standards to support the electronic acquisition, exchange, submission, and archiving of clinical trial data and metadata for medical and biopharmaceutical product development ( http://www.cdisc.org ).

Under current regulations, applicants are required to provide case report tabulations (i.e., study data) for certain studies included in a marketing application (see 21 CFR 314.50). In guidance for industry titled “Providing Regulatory Submissions in Electronic Format—Human Pharmaceutical Product Application and Related Submissions Using the eCTD Specifications,” FDA makes recommendations about how to submit documents in electronic format for investigational new drug (IND) applications, biologic license applications (BLAs), and new drug applications (NDAs) using the electronic common technical document (eCTD) specifications. In Section III.E.4 of that guidance, FDA refers to the CDISC SDTM as the Study Data Specification for voluntary electronic submission of clinical study data.

In addition, FDA is planning to amend the regulations governing the format in which clinical study data and bioequivalence data are required to be submitted for NDAs, BLAs, and abbreviated new drug applications (ANDAs). 2 This proposal would revise FDA's regulations to require that clinical data submitted for NDAs, BLAs, and ANDAs, and their supplements and amendments: (1) Be provided in electronic format and (2) use a standardized data structure, terminology, and code sets as referenced in FDA guidance to enable efficient and comprehensive data review.

The Janus study data repository is being developed by FDA and NCI through the Interagency Oncology Task Force (IOTF), which was established in 2003 to enable the two organizations to share knowledge and resources to facilitate the development of new cancer drugs and speed the development and their delivery to patients. As part of the IOTF agreement, FDA is working with NCI to build tools and an environment that facilitates and streamlines electronic interaction and collaboration among FDA and its stakeholders in the regulatory review process. The Janus initiative is part of a larger effort to implement a common, standards-based electronic infrastructure that supports the submission, validation, data warehousing, access, and analysis of structured scientific data to support regulatory review.

Phase 1 of the Janus implementation effort was a proof of concept pilot that successfully demonstrated the ability to load SDTM data into Janus, extract data from Janus using commercial-off-the-shelf (COTS) query tools, and produce data from Janus in SDTM format. Phase 2 of this initiative involved development of an operational pilot that includes a data import and validation facility, the integration of reviewer tools with the Janus repository, and provision of reviewer access to the data via selected analytical and visualization tools. Validation criteria for processing SDTM submissions were developed for use in that pilot based on the SDTM implementation guide and FDA business requirements. The SDTM validation specification for Janus established the business rules for error-checking functions that determine whether SDTM submission data can be loaded successfully into the Janus repository. 3

CDER has received a limited number of SDTM submissions since it began accepting these standardized datasets. Our experience with these submissions during the phase 2 pilot has shown that additional collaboration with sponsors will be needed on the preparation, submission, and analysis of SDTM datasets to facilitate a common understanding of the data quality requirements that are necessary to realize long-term benefits of an integrated clinical trials data repository.

As a result, FDA is now announcing the start of phase 3 of the Janus operational pilot, which will enable a wider stakeholder community to participate in the Janus development initiative. The goals of the phase 3 pilot are as follows:

• Transition the phase 2 pilot to operational production;

• Test the electronic processing of standardized clinical study data, including the successful validation and loading of data into the Janus study repository and subsequent access to that data by reviewers using a combination of analytical and visualization tools;

• Test a new XML-based submission format for CDISC content (CDISC-HL7 messages, see below) currently under development;

• Extend the Janus logical data model and service-oriented architecture to support submission of CDISC-HL7 messages;

• Integrate with NCI's Enterprise Vocabulary Service (EVS);

• Test the integration and analysis of clinical study data stored in Janus with pharmacogenomic data currently being received through the Voluntary Genomic Data Submissions (VGDS) program. 4

A desired outcome of the phase 3 pilot is a production environment that supports the routine processing and management of all structured clinical study data provided in regulatory submissions.

The phase 3 operational pilot will also test a new submission format. Currently, SDTM datasets are provided in SAS transport format. FDA recognizes the limitations of the outdated SAS transport format and intends to transition towards a new, more robust XML-based submission format. FDA is currently sponsoring a project within HL7 5 to develop a standard XML exchange format (called “messages”) for standardized clinical study data content as defined by CDISC. This “CDISC Content to HL7 Message Project” will enable the exchange of clinical study data in a standardized HL7-XML-based format. We believe this will facilitate loading study data into Janus and provide additional benefits. A successful phase 3 pilot will also enable FDA to routinely accept HL7-XML-based clinical study data submissions.

Concurrent with the phase 3 pilot, CDER also will be exploring ways to integrate related data standards initiatives with the Janus effort. These related initiatives include the enhancement of the current Janus logical model to incorporate preclinical and pharmacogenomics data and product safety data. Future efforts will continue to focus on business information requirements for managing product life-cycle data across all FDA regulated products.

This pilot project is part of an ongoing effort to improve the efficiency of the review of study data within CDER. As we gain additional experience from this pilot, CDER expects to update its study data submission technical specifications as part of a continuing process to improve the quality of clinical study data provided electronically.

CDER is seeking applicants who have submitted or are planning to submit in the near future (i.e., within 6 months of publication of this notice) SDTM files in a regulatory submission in accordance with existing guidance and technical specifications. Our experience during phase 2 has shown that SDTM files routinely fail the Janus validation procedures and cannot be loaded into Janus automatically. Pilot participants should agree to work closely with Janus technical staff to review the validation errors, correct them, and resubmit the files. The ability to successfully load data into the Janus repository is an important pilot milestone. Experience gained as a result of working with participating sponsors during this pilot will help us improve the validation criteria, which subsequently will help improve the quality of future study data submissions. Pilot participants will also gain valuable experience in creating and submitting quality standardized data submissions. Of particular interest are pilot participants who are also able to provide pharmacogenomic data (i.e., VGDS) with the CDISC data. This will enable us to test the integration of clinical data stored in Janus with pharmacogenomic data. Although a VGDS is not required to participate in this pilot, it is a desirable component of the pilot and is encouraged whenever possible.

From this pool of pilot participants, we are also seeking five to eight companies willing to supply study data in the new HL7 XML format (in addition to SDTM datasets) for testing, processing, and loading into Janus. FDA will provide some technical support with the new HL7 XML format, such as help in understanding and interpreting the new specifications. Those who participate in this part of the pilot also will be provided secure access to their data in Janus so they can test the integrity of their data within the Janus environment. Although the SDTM files are part of a regulatory submission, all of the activities involved in this pilot will be conducted outside of a regulatory setting. That is, the SDTM datasets will be reviewed according to current review practices for any electronic dataset submission, and pilot activities will not impact the regulatory review clock, will not affect or delay reviewability assessments, filability decisions, or any regulatory actions.

Requests to participate in the pilot project should be submitted to the Division of Dockets Management (see ADDRESSES ). Requests are to be identified with the docket number found in brackets in the heading of this document. The pilot enrollment period will last 6 months following publication of this notice. The pilot is expected to last approximately 1 year, but this duration will be subject to change as the pilot progresses. Updates to the pilot will be publicly posted on the FDA Janus Operational Pilot Web page. 6

Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding this pilot project. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper 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 Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

The wetland management districts provide oversight for the U.S. Fish and Wildlife Service's small wetlands acquisition programs, that from receipts from Duck Stamp funds, acquire habitat under the provisions of the Migratory Bird Treaty Act. The nine districts manage 1,208 waterfowl production areas (232,509 acres), tens of thousands of conservation easements, and 50 wildlife development areas (18,540 acres) in 34 counties in North Dakota. These district lands (totaling 1,125,100 acres) are part of the National Wildlife Refuge System, a network of lands set aside to conserve fish and wildlife and their habitat.

This draft CCP/EA identifies and evaluates three alternatives for managing the districts for the next 15 years. Alternative A, funding, staff levels, and management activities at the districts would not change. Programs would follow the same direction, emphasis, and intensity as they do at present. The Service would prioritize management of wildlife habitat and associated species at the districts' WPAs into high, medium, and low areas. Only high-priority WPAs receive consistent management. District staffs conduct limited, issue-driven research and limited monitoring and inventory of birds and vegetation.

The district staffs monitor all conservation easements and high-priority easement violations are consistently enforced. On a multiyear rotation among districts, the staffs conduct public use events and workshops with such groups as school districts, youth groups, and conservation groups.

Alternative B, the Service's proposed action, wildlife habitat management would enhance wetlands and uplands, where warranted, on district lands. Management objectives for habitat types would be based on the habitat preferences of groups of target species such as waterfowl, migratory shorebirds, grassland birds, and threatened and endangered species. District staff would focus on high-priority tracts and medium-priority tracts. The district staff would carry out compatible techniques, such as nest boxes for waterfowl, to enhance production of targeted migratory bird populations. The district staff would maintain existing environmental education and visitor services programs, with additional waterfowl emphases. The Service proposes, at a future date, (1) one new administration and visitor center facility each for Audubon and Kulm wetland management districts, and (2) one new visitor contact station each for Lostwood, Valley City, and Arrowwood wetland management districts.

Alternative C, management by the district staff would be more intensive and widespread, targeting native prairie and wetland habitat. As a priority, district staff would seek out restoration projects that expand and return native grasslands to quality native prairie. This alternative would have potential for additional management options that address habitat requirements and needs of specific groups of water-dependent birds such as waterfowl and shorebirds. The staff would develop new environmental education and visitor services programs. The Service proposes, at a future date, (1) one new administration and visitor center facility each for Audubon and Kulm wetland management districts, and (2) one new visitor contact station each for Lostwood, Valley City, and Arrowwood wetland management districts.

Opportunity for public input will be provided by the Service. All public comment information provided voluntarily by mail, by phone, or at meetings (e.g., names, addresses, letters of comment, input recorded during meetings) becomes part of the official public record. If requested under the Freedom of Information Act by a private citizen or organization, the Service may provide copies of such information. The environmental review of this project will be conducted in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321 et seq. ); NEPA Regulations (40 CFR parts 1500-1508); other appropriate Federal laws and regulations; Executive Order 12996; the National Wildlife Refuge System Improvement Act of 1997; and Service policies and procedures for compliance with those laws and regulations.

Title: National Cooperative Geologic Mapping Program—EDMAP (NCGMP-EDMAP)

OMB Control Number: 1028-new

Abstract: EDMAP is the component of the NCGMP that trains the next generation of geologic mappers. The NCGMP allocates funds to colleges and universities in the United States and Puerto Rico through an annual competitive grant process. Every Federal dollar that is awarded is matched with university funds. Geology professors, who are skilled in geologic mapping, request EDMAP funding to support undergraduate and graduate students at their college or university in a one-year mentored geologic mapping project that focuses on a specific geographic area.

Since 1996, more than $4 million from the NCGMP has supported geologic mapping efforts of more than 600 students working with more than 214 professors at 131 universities in 44 states, the District of Columbia, and Puerto Rico. Funds for graduate projects are limited to $15,000 with undergraduate project funds limited to $7,500. These funds are used to cover field expenses and map production, but not faculty salaries. The college or university matches the EDMAP funding.

The authority for the program is listed in the National Geologic Mapping Act (Public Law 106-148).

We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR Part 2), and under regulations at 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection.” Responses are voluntary. No questions of a “sensitive” nature are asked.

Frequency of Collection: Annually.

Respondent's Obligation: Voluntary (necessary to receive benefits).

Estimated Number and Description of Respondents : Approximately 60 University/College Professors or faculty advisors annually.

Annual Burden Hours: 1,100 hours.

Estimated Annual Reporting and Recordkeeping “Hour” Burden: We expect to receive approximately 55 applications, taking each applicant approximately 20 hours to complete, totaling 1,100 burden hours.

Estimated Annual Reporting and Recordkeeping “Non-Hour Cost”: We have not identified any “non-hour cost” burdens associated with this collection of information.

Public Disclosure Statement: The PRA (44 U.S.C. 3501, et seq. ) provides that an agency may not conduct or sponsor and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.

Comments: Before submitting an ICR to OMB, PRA section 3506(c)(2)(A) (44 U.S.C. 3501, et seq. ) requires each agency “ * * * to provide notice * * * and otherwise consult with members of the public and affected agencies concerning each proposed collection of information * * *” Agencies must specifically solicit comments. We invite comments concerning this information collection on:

(1) Whether or not the collection of information is necessary, including whether or not the information will have practical utility;

(2) the accuracy of our estimate of the burden for this collection of information;

(3) ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) ways to minimize the burden of the collection of information on respondents.

Please note that the comments submitted in response to this notice are a matter of public record. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done. To comply with the public process, we publish this Federal Register notice announcing that we will submit this ICR to OMB for approval. The notice provided the required 60 day public comment period.

USGS Information Collection Clearance Officer: Phadrea D. Ponds 970-226-9445.

In accordance with Section 7 of the Taylor Grazing Act, (43 U.S.C. 315f), and Executive Order No. 6910, the following described public land in Lincoln County, Wyoming, has been examined and found suitable for classification for lease and conveyance under the provisions of the R&PP Act, as amended, (43 U.S.C. 869 et seq. ):

In accordance with the R&PP Act, the Town of Star Valley Ranch filed an application for the above-described 40.00 acres of public land to be developed for municipal facilities and recreational activities. The municipal facilities include town offices and a maintenance building, equipment storage shed building, and parking areas. The recreation facilities include walking/bicycle pathways, sheltered picnic tables, health and fitness stations, and flora and fauna viewing areas. Additional detailed information pertaining to this application, plan of development, and site plan is in case file WYW-171184, located in the BLM Kemmerer Field Office at the above address.

The land is not needed for any Federal purpose. The lease and conveyance is consistent with the Kemmerer Resource Management Plan dated April 29, 1986, and would be in the public interest. The patent, when issued, will be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior, and will contain the following reservations to the United States:

1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945); and

2. All minerals, together with the right to prospect for, mine, and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe.

The patent will be subject to all valid existing rights documented on the official public land records at the time of patent issuance.

On August 18, 2008, the land described above will be segregated from all other forms of appropriation under the public land laws, including the general mining laws, except for conveyance under the R&PP Act, leasing under the mineral leasing laws, and disposals under the mineral material disposal laws.

Classification Comments: Interested parties may submit comments involving the suitability of the land for municipal and recreation uses. Comments on the classification are restricted to whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or if the use is consistent with State and Federal programs.

Application Comments: Interested parties may submit comments regarding the specific use proposed in the application and plan of development, whether the BLM followed proper administrative procedures in reaching the decision to convey under the R&PP Act, or any other factor not directly related to the suitability of the land for R&PP use.

Confidentiality of Comments: Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Only written comments submitted by postal service or overnight mail to the Field Manager—BLM Kemmerer Field Office will be considered properly filed. Electronic mail, facsimile or telephone comments will not be considered properly filed.

Any adverse comments will be reviewed by the State Director. In the absence of any adverse comments, the classification of the land described in this notice will become effective October 17, 2008. The lands will not be available for lease or conveyance until after the classification becomes effective.

The NPS is conducting this study in response to Public Law 109-249 which required a determination of the national significance of sites related to the battles of the River Raisin as well as the suitability and feasibility of including them in the National Park System.

The significance of the River Raisin Battlefield derives from events early in1813 when, angry at the American surrender of Detroit to the British in August of 1812, militia from Kentucky marched to Frenchtown (today, Monroe) on the River Raisin south of Detroit. The town was occupied by predominantly French-Canadians who, threatened by the British, had asked for military protection. On January 18, 1813, 667 Kentuckians successfully defended Frenchtown against a much smaller force of Canadian militia and Indians. Four days later, a British and Indian force launched a counterattack on the Kentuckians, together with a force of 250 American regulars who had joined them, and inflicted tremendous harm. At the end of the battle, American casualties totaled 220 killed, 80 wounded, and more than 500 taken prisoner. However, it was the attack on the wounded by the Indians the following day that most shocked the American conscience. While the wounded waited in Frenchtown for the British to bring sleds to carry them away, they were attacked by Indians who, came into the town to seek revenge. The Indians brutally murdered most of the wounded and burned down the town. The phrase “Remember the River Raisin” became a rallying cry for the later Battle of the Thames, the last battle of the War of 1812, which cemented the American victory.

A portion of the River Raisin Battlefield was placed on the National Register in 1982. In the last few years, the city of Monroe has worked to secure grants to remove former industrial buildings on the site with the goal of reclaiming the historic integrity of the Battlefield.

The Panel, which was established pursuant to the Prison Rape Elimination Act of 2003, Public Law 108-79, 117 Stat. 972 (codified as amended at 42 U.S.C. 15601-15609 (2006)), will hold its next hearings to carry out the review functions specified at 42 U.S.C. 15603(b)(3)(A). Testimony from the hearing will assist the Panel in formulating best practices for deterring prison rape. Space is limited at all hearing locations. Members of the public who wish to attend the hearing in Washington, DC, must present photo identification upon entrance to the Office of Justice Programs. Special needs requests should be made to Christopher Zubowicz, Designated Federal Official, OJP, christopher.zubowicz@usdoj.gov or 202-307-0690, at least one week prior to the hearing.

In the Copyright Royalty and Distribution Reform Act of 2004, Congress amended Title 17 to replace the copyright arbitration royalty panel with the Copyright Royalty Judges (“CRJs”). One of the functions of the CRJs is to make determinations and adjustments of reasonable terms and rates of royalty payments as provided in sections 112(e), 114, 115, 116, 118, 119 and 1004 of the Copyright Act. The CRJs have the authority to request from the Register of Copyrights (“Register”) an interpretation of any material question of substantive law that relates to the construction of provisions of Title 17 and arises out of the course of the proceeding before the CRJs. See 17 U.S.C. 802(f)(1)(A)(ii).

On July 25, 2008, the CRJs delivered to the Register: (1) an Order referring material questions of substantive law; and (2) the Briefs filed with the CRJs by the Recording Industry Association of America; the Digital Media Association; and National Music Publishers’ Association, Inc., the Songwriters Guild of America, and the Nashville Songwriters Association International. The CRJs’ delivery of the request for an interpretation triggered the 14-day response period prescribed in Section 802 of the Copyright Act. This statutory provision states that the Register “shall deliver to the Copyright Royalty Judges a written response within 14 days after the receipt of all briefs and comments from the participants.” See 17 U.S.C. 802(f)(1)(A)(ii). The statute also requires that “[t]he Copyright Royalty Judges shall apply the legal interpretation embodied in the response of the Register of Copyrights if it is timely delivered, and [that] the response shall be included in the record that accompanies the final determination.” Id . On August 8, 2008, the Register responded in a Memorandum Opinion to the CRJs that addressed the material questions of law. To provide the public with notice of the decision rendered by the Register, the Memorandum Opinion is reproduced in its entirety, below.

Before the

U.S. Copyright Office

Library of Congress

Washington, D.C. 20559

Docket No. RF 2008-1

On July 25, 2008, under the terms of 17 U.S.C. § 802(f)(1)(A)(ii), the Copyright Royalty Judges (“CRJs”) referred to the Register of Copyrights material questions of substantive law which have arisen in this proceeding. The Copyright Royalty Judges included briefs from the parties to the proceeding that had been submitted in February, 2008 relating to the authority of the CRJs to set terms governing the section 115 compulsory license.

After recounting the relevant statutory provisions of section 115 and Chapter 8 of Title 17, the CRJs posed the following questions:

As required by 17 U.S.C. § 802(f)(1)(A)(ii), the Register hereby responds to the CRJs.

Prior to 1995, the copyright law empowered the Copyright Royalty Tribunal and, subsequently, the Copyright Arbitration Royalty Panels (“CARPs”) and the Librarian of Congress, to set only the rates applicable to the section 115 license. This authority was modified in 1995 by the Digital Performance Right in Sound Recording Act of 1995 in which Congress added provisions to section 115 for “digital phonorecord deliveries.” The CARPs became authorized to set “reasonable terms and rates of royalty payments” for digital phonorecord deliveries (“DPDs”), and these rates and terms were subject to modification by the Librarian on recommendation by the Register of Copyrights. The same legislation authorized the Librarian to “establish requirements by which copyright owners may receive reasonable notice of the use of their works..., and under which records of such use shall be kept and made available by persons making digital phonorecord deliveries.” 17 U.S.C. § 115(c)(3)(D) (1996). With respect to physical phonorecords, the CARPs’ authority was limited to setting rates; there was no statutory authorization to set “terms.” See 17 U.S.C. § 801(b)(1) (1996). However, the Register of Copyrights had the authority to issue regulations concerning payment. Section 115(c)(5) provided (and continues to provide), in pertinent part:

This provision applies to both digital phonorecord deliveries and physical phonorecords.

Since 1978, section 115 has also provided that persons wishing to use the section 115 compulsory license must serve a Notice of Intention to Obtain Compulsory License on the copyright owner, and that the “notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.” 17 U.S.C. § 115(b)(1).

In 2004, Congress passed the Copyright Royalty and Distribution Reform Act (“CRDRA”). This legislation created the CRJs and empowered them to set “terms and rates of royalty payments” under section 115. See 17 U.S.C. § 801(b)(1). It also amended section 115 to provide that the CRJs had authority to set “reasonable rates and terms of royalty payments” for use of works under the license as well as “requirements by which records of such use shall be kept and made available.” 17 U.S.C. § 115(c)(3)(D). However, the statutory provisions authorizing the Register to regulate notice of intention to obtain the section 115 license and requirements regarding monthly payment and monthly and annual statements of account remained in place.

The brief of the Digital Media Association (“DiMA”) in response to the CRJs’ inquiry on its authority to set certain terms asserts that to the extent that the authority of the Register and the CRJs overlap, their jurisdiction is concurrent. Given this concurrent jurisdiction, DiMA maintains that both the Register and the CRJs may administer the license in a way that gives effect to the statute and avoids inconsistency. In keeping with this assertion, DiMA argues that the CRJs are authorized to identify the revenue against which the license rate should be applied, define the work, and set forth the scope of the activities covered by the license.

The brief of the National Music Publishers’ Association, the Songwriters Guild of America, and the Nashville Songwriters Association International (collectively, “NMPA”) in response to the CRJs’ inquiry on its authority to set certain terms asserts that CRJs have broad authority to determine rates and terms for the section 115 license. Further, it notes that the CRJs have express power to establish terms with respect to late fees and that they may specify notice and recordkeeping requirements that apply in lieu of existing regulations. In NMPA‘s determination, the CRJs have the authority to issue fees for payments that are either late or are the result of a pass-through arrangement. NMPA argues that the CRJs are empowered to require licensees to issue reports indicating the specific configuration used, and in the case of pass-through licenses, identify the retailer through which delivery occurred. NMPA then contends that the CRJs are able to clarify whether the license fee is to be calculated on manufacture or distribution. It also asserts that the Register is explicitly granted authority over signing and certification of statements of account and that therefore the CRJs are not able to modify existing regulations in these areas, which are not properly considered recordkeeping.

The brief of the Recording Industry of America (“RIAA”) in response to the CRJs’ inquiry on its authority to set certain terms asserts that Congress split the administration of the section 115 license between the CRJs and the Register of Copyrights. In its determination, the CRJs enjoy broad authority to set rates as well as a more limited authority to set terms of royalty payments. Additionally, RIAA maintains that the CRJs are empowered to set rules regarding notice to copyright owners of the use of their works and recordkeeping of such use. However, RIAA argues that the Copyright Office has a broad authority to establish detailed provisions that govern the operation of the license. In RIAA‘s view, section 803(c)(3) resolved any tension between these competing authorities by resolving that the CRJs’ final determination in the areas of notice and recordkeeping may supplant applicable regulations by the Register. Under this statutory interpretation, RIAA argues that the CRJs are unable to issue payment terms such as pass-through fees or attorney‘s fees that conflict with existing payment regulations. RIAA also posits that the CRJs are unable to alter the regulations regarding reserves or notices of intention that have been issued by the Register. On the other hand, RIAA maintains that the CRJs are able to clarify that the section 115 license extends to all reproductions necessary to engage in activities covered by the license. It asserts that the CRJs are able to modify the current provisions regarding when DPDs shall be treated as distributed, as well as those addressing audit and signature of signature of statements of account.

Congress intentionally split the administration of section 115 between the CRJs and the Register of Copyrights. The result of this division of authority is that the CRJs may issue regulations that supplant currently applicable regulations, including those heretofore issued by the Librarian of Congress, solely in the areas of notice and recordkeeping. 17 U.S.C. § 803(c)(3). However, the scope of the CRJs’ authority in the areas of notice and recordkeeping for the section 115 license must be construed in light of Congress’s more specific delegation of responsibility to the Register of Copyrights, which includes the authority to issue regulations regarding notice of intention to obtain the section 115 license as well as those regarding monthly payment and monthly and annual statements of account. 17 U.S.C. § § 115(b)(1) and 115(c)(5). Moreover, accepted principles of statutory construction dictate that the CRJs’ authority to set “terms” must be construed in light of the more specific delegations of authority to the Register. See Simpson v. United States , 435 U.S. 6, 15 (1978) (“Precedence [is given] to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later.”).

In the CRDRA, Congress amended section 115(c)(3)(D) to authorize the CRJs to “establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept and made available by persons making digital phonorecord deliveries.” Previously this power had been held by the Librarian of Congress, who issued such recommendations on the recommendation of the Register of Copyrights.. The CRDRA also added a new section 803(c)(3), which allowed the CRJs to “specify notice and recordkeeping requirements of users of the copyrights at issue that apply in lieu of those that would otherwise apply under regulations.” On its face it may appear as if the CRJs are empowered to supplant all current regulations in the area of notice and recordkeeping. However, the CRJs’ authority to issue regulations in the areas of notice and recordkeeping must be construed in light of the specific grants of responsibility over the section 115 license to the Register of Copyrights. Simpson v. United States , 435 U.S. at 15.

With regard to the CRJs’ authority to issue requirements by which copyright owners may receive notice of the use of their works under 17 U.S.C. § 115(c)(3)(D), the Register first notes that the authority granted to the CRJs is limited to notice of use that has already taken place under the license. Notice of a use that has already taken place under the license is to be distinguished from notice of intention to obtain the section 115 license, which must be served on copyright owners prior to actual use under the license. Regulations governing notice of intention to obtain the section 115 license remain within the Register‘s authority. The CRJs’ authority over notice and recordkeeping does not include the ability to supplant the Register‘s regulations governing notice of intention to obtain the section 115 license.

Notice of use requirements are also limited by the Register‘s specific grant of authority to issue regulations regarding statements of account. These regulations set forth information that is required to be served on the copyright owner in statements of account. While the level of detail, which includes requirements regarding oath, signature, and indication of each phonorecord configuration involved, is quite extensive, the Register understands that it may be conceivable that the CRJs may determine that licensees should be required to provide some information related to notice of use that is not addressed in either the notice of intention to obtain the section 115 license or the statements of account. If the CRJs are able to identify such information that is not addressed in either the notice of intention to obtain the section 115 license or the statements of account, then the CRJs may require that a licensee include that type of information in a notice of use (but not in the statement of account) to be served on the copyright owner. Alternatively, a recommendation by the CRJs to the Register to amend the regulations governing statements of account to include additional information presumably would meet with a favorable response.

The CRJs’ authority to issue requirements for recordkeeping is similarly limited by specific grants of authority to the Register. As previously indicated, the Register has set forth detailed requirements addressing the type of information, including phonorecord configuration, that is to be served on the copyright owner in the statements of account. Authority to issue regulations regarding these statements of account is the exclusive domain of the Register. Of course, if the CRJs set rates for new types of configurations, the Register can amend the regulations governing statements of account accordingly.

In addition to the authority to issue regulations in the areas of notice and recordkeeping, the CRJs enjoy authority to determine reasonable “rates and terms” of the license. The power to issue “terms” of the license was established in the DPRSA and the scope of this authority is addressed in the legislative history of that Act. The legislative history indicates that “terms” means such details as “how payments are made, when and other accounting matters,” as well as “related details.” S. Rep. No. 104-128, at 40 (1995). As with the CRJs’ authority over the areas of notice and recordkeeping, the authority to issue “terms” is limited by specific statutory grants of authority to the Register. If and to the extent that an express statutory grant of authority to the Register conflicts with an interpretation of language in the legislative history relating to the CRJs’ power to set terms on how payments are made and other accounting matters, the statutory text controls and the Register‘s express authority is paramount. However, to the extent that the Register‘s authority does not extend to particular matters relating to terms of payment and related details which the CRJs determine should be addressed, the CRJs have the authority to supplement the Register‘s regulations in this area. The legislative history of the DPSRA indicates that the CRJs’ authority to determine “terms” includes additional terms “necessary to effectively implement the statutory license.” Id . at 30. Consistent with the legislative history, the Librarian of Congress, in a previous determination regarding the scope of “terms” in the course of a 1998 proceeding addressing the 114 license, concluded that the authority to set reasonable terms extends “only so far as those terms insured the smooth administration of the license.” Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings, 63 FR 25394, 25411 (May 8, 1998). See also Recording Industry Association of America v. Librarian of Congress , 176 F.3d 528, 531 (D.C. Cir. 1999) (Librarian of Congress’s authority to set “terms” for the section 114 statutory license includes authority to set terms relating to allocation of royalties, to audits and to deductions from royalties, but such determination must be based on record evidence).

While the Register is not able to exhaustively address all of the types of terms that insure the “smooth administration of the license” or are “necessary to effectively implement the statutory license,” the Register does conclude that the CRJs do have the authority to issue requirements regarding audit of statements of account and records that are required to be kept. See RIAA v. Librarian of Congress , 176 F.3d at 531. However, the Register concludes that a provision entitling copyright owners to recover attorney‘s fees expended to collect past due royalties is not among the types of “terms” that insure the “smooth administration of the license” or are “necessary to effectively implement the statutory license.” Moreover, the statutory method for enforcement of the section 115 license is found in section 115(c)(6), which provides that the owner may issue a notice of default, which unless remedied within 30 days terminates the license and provides for infringement action. Section 505 governs awards of attorney‘s fees in infringement actions, and it is not within the CRJs’ scope of authority to provide for awards of attorney‘s fees other than as provided in section 505. The statutory method for enforcement found in section 115(c)(6) appears to foreclose other legal avenues by which a copyright owner may seek remedy for past due royalties and late fees. However, even if other remedies are available to recover past due royalties, the well established “American Rule” that attorney‘s fees are available only when explicitly established by statute or through negotiated contract would foreclose any conclusion that the CRJs have the authority to impose an attorney‘s fee regime on compulsory licensees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc‘y , 421 U.S. 240, 257 (U.S. 1975) (absent statute or enforceable contract, litigants pay their own attorneys’ fees). As section 115 does not contain an explicit provision for attorney‘s fees, the CRJs are unable to provide for awards of attorney‘s fees in actions to collect past due royalties.

The CRJs do not have the authority to issue rules setting forth the scope of activities covered by the license. However, the CRJs certainly have the authority to set rates for different types of DPDs. In so doing, they may have to make determinations to identify particular types of DPDs. Such determinations may implicate the question of what activity falls within the scope of the license. In instances where particular rates are being requested for the creation of particular types of DPDs and there is some question whether these DPDs fall within the scope of the license, those questions must be resolved in the proceeding. When such a question has not been determined before, it is a novel question of law which should be referred to the Register under section 802(f)(1)(B). In any event, any such determination by the CRJs will be subject to review for legal error by the Register under section 802(f)(1)(D).

NMPA has proposed that the CRJs determine that the license fee is to be calculated on the date of distribution, not the date of manufacture. The CRJs’ authority to set rates and terms does appear to be sufficiently broad to include the authority to determine the date on which the mechanical license fee is to be calculated. However, we caution that the legislative history of section 115 suggests that the applicable rate should be the date the phonorecord is made. When the House Judiciary Committee considered the language that was to become section 115 of the 1976 Copyright Act in 1966 and 1967, it stated that “the committee believes that, unless a negotiated agreement provides otherwise, the liability for royalties should be fixed at the time phonorecords are made under a compulsory license.” Second Supplementary Register‘s Report on the General Revision of the U.S. Copyright Law (1975) at 251. Moreover, it would most likely be beyond the power of the CRJs to provide that with respect to phonorecords that have already ( i.e ., prior to the effective date of the current rate determination) been manufactured, the royalty fee is to be calculated as of the date of distribution rather than the date of manufacture. Such retroactive rulemaking is in most cases beyond the power of an agency. See Bowen v. Georgetown University Hospital , 488 U. S. 204 (1988).

Finally, the CRJs request clarity regarding their authority over terms of late payments. Under section 803(c)(7), the CRJs have a clear authority to include terms with respect to late payments. However, the Register notes that this authority applies solely to payments that are in fact past due.

In April 2008, the NCUA Board published a proposed IRPS regarding the prohibition imposed by Section 205(d) of the FCU Act. 73 FR 18576 (April 4, 2008). Section 205(d) of the FCU Act prohibits, without the prior written consent of the NCUA Board, a person convicted of any criminal offense involving dishonesty or breach of trust, or who has entered into a pretrial diversion or similar program in connection with a prosecution for such offense, from becoming or continuing as an institution-affiliated party, or otherwise participating, directly or indirectly, in the conduct of the affairs of an insured credit union. The comment period closed on June 3, 2008. NCUA received seven comments on the proposal. After consideration of the comments, NCUA is finalizing the IRPS, which generally adopts the guidance as proposed.

NCUA welcomed general comments on the proposed IRPS. In addition, the Board specifically sought comments as to whether the format of this guidance as an IRPS was appropriate or whether a regulation would be more suitable. The Board invited comments as to whether a specific form, similar to the form required by the FDIC in connection with a similar statute, should be used to request consent pursuant to Section 205(d).

NCUA received seven comment letters in response to the proposed IRPS: two from federal credit unions, two from national credit union trade organizations, and three from credit union leagues. The commenters generally supported the need for the guidance as contained in the proposed IRPS and offered several suggestions intended to assist the Board in improving the proposed IRPS.

Two commenters believed that a regulation was the more appropriate format for the guidance. One of the commenters who favored a regulation thought a regulation provided greater protection to a credit union that might be challenged by a prospective employee. Another commenter believed a regulation was preferable because it would help reinforce a credit union's right to appeal an adverse decision and subject future changes to public notice and comment. A third commenter suggested the guidance should take the form of a Letter to Credit Unions, believing that format was more familiar to credit union officials.

The Board appreciates the need to provide protection for credit unions that seek to comply with the requirements of the IRPS. However, the Board concludes that the source of the requirement stems from federal statute, namely Section 205(d). Thus, the Board believes that the need to comply with federal law, as augmented by guidance in the form of an IRPS, should be sufficient to protect a credit union. The Board believes that credit union officials should be able to adequately understand and apply the guidance styled as an IRPS and that the right to request a hearing contained in the IRPS provide a credit union a sufficient right to appeal a denial of consent by the Board. Additionally, the Board does not amend its IRPS without providing the public notice and an opportunity to comment. For all of these reasons, the Board believes it appropriate to issue the final guidance in the form of an IRPS.

Four commenters believed that a form should be required in order to request consent. As one commenter observed, the use of a form “is necessary to ensure uniformity and consistency throughout the consent process.” The commenters favoring a form suggested that the form required by the FDIC was a reasonable template that could be modified to fit the needs of credit unions. The Board concurs with the commenters and therefore the final IRPS contains a requirement that applications for consent under Section 205(d) must be presented on the form attached to this IRPS.

A majority of the commenters sought additional guidance from NCUA as to who comes within the prohibition of Section 205(d). In particular, commenters were concerned as to whether independent contractors of a credit union would come within the ambit of Section 205(d), thus requiring credit unions to make inquiry as to the past criminal history of such contractors.

Several commenters also expressed concern over the use of the term “de facto employee”, believing it is confusing and has never been defined by NCUA. Another commenter believed use of the concept exceeded the statute and thus was an improper expansion of the scope of the prohibition imposed by Section 205(d). Still another commenter expressed the view that such expansive definitions could require credit unions “to perform background checks on any party with whom it has commercial dealings. * * *” This commenter also believed that Section 19 of the Federal Deposit Insurance Act was clearer and less subjective than the definition in the proposed IRPS. Further, another commenter believed the definition of independent contractor was inconsistent with the FCU Act because the definition cited to Section 206(r), which contains the term “violation of any law or regulation.”

The Board recognizes that the language of Section 205(d) creates uncertainty as to whom the section applies. The terms “institution-affiliated party”, and “otherwise participate, directly or indirectly, in the conduct of the affairs of any insured credit union” are terms dictated by Congress in the statute. 1 Those are terms that are used and defined in various other sections of the FCU Act, as well as in statutes applied by the other federal financial institution regulatory agencies. As a result, a body of case law has developed that further defines these terms. These definitions are fact dependent, making it difficult to provide easily understood, universal definitions. Neither the OTS nor the FDIC thought it advisable to define similar terms, and the Board is likewise reluctant to attempt to do so.

The Board recognizes that one common concern expressed by commenters was to what extent Section 205(d) applied to independent contractors, and thus required inquiry of such contractors by credit unions. The Board wishes to make clear that not all contractors are subject to the prohibition contained in Section 205(d). The crucial test is the degree or extent to which the contractor participates in the affairs of the credit union. As the proposed IRPS stated, “an independent contractor who influences or controls the management or affairs of an insured credit union, would be covered by Section 205(d).”

The FDIC addressed the issue of affiliated parties and independent contractors in the preamble to its Statement of Policy Pursuant to Section 19 of the Federal Deposit Insurance Act as follows:

The Board agrees with the FDIC's analysis and believes it is applicable to the credit union community as well. Therefore, the Board is of the view that very few of the contractors who perform services for credit unions will be involved to such a degree that they could be said to be influencing or controlling the management or affairs of a credit union. Only when the involvement of affiliates or independent contractors rise to the level of influencing or controlling the management or affairs of a credit union does the credit union need to be concerned about the criminal past of the employees of the affiliate or independent contractor.

One commenter asked whether it would be sufficient to specify in contracts with vendors that no one who had been convicted of any criminal offense involving dishonesty or breach of trust would be allowed to have dealings with the credit union. The FDIC touched on this question in its preamble, stating that it “expects that the relationship between an independent contractor and an insured institution is to be governed by a written contract, through which the insured institution may require typical safeguards such as warranties and bond coverage.” Id, at 66179. Though not required by the IRPS, the additional contractual restriction on a contractor to not use employees who would otherwise be prohibited under Section 205(d), as proposed by the commenter, would be a reasonable, additional safeguard.

Several commenters expressed concern about the use of the term de facto employee. This is a common employment law concept that was adopted by the FDIC in its Statement of Policy Pursuant to Section 19 of the Federal Deposit Insurance Act to prevent individuals from circumventing the requirements of the law by simply claiming to be an independent contractor. As the FDIC explained:

Whether an individual is actually an independent contractor or an employee (a de facto employee) has profound implications with respect to tax and other employment matters. In determining whether a person must request consent pursuant to Section 205(d), the Board believes it is appropriate to consider what the employee actually does and their relationship to the credit union rather than simply whether they are called an independent contractor. Therefore, the final IRPS retains the concept that de facto employees, as determined by applying generally applicable standards of employment law, will also be subject to Section 205(d). Because it is not possible to provide more concrete definitions, the Board wants to emphasize that credit unions with any questions regarding whether a particular person comes within the scope of Section 205(d) may solicit guidance from NCUA's Office of General Counsel.

Two commenters expressed a desire for a more comprehensive definition of what offenses qualify as de minimis. One commenter proposed that the Board provide a comprehensive listing of offenses that involve dishonesty or breach of trust. Another commenter noted that almost every criminal offense could be said to involve dishonesty or breach of trust in some form, and asked whether virtually all convictions would be subject to Section 205(d).

The Board understands the desire by credit unions for more certainty regarding when an application under Section 205(d) is required. However, considering the number of potential jurisdictions that have criminal statutes containing offenses involving dishonesty or breach of trust, it is simply not possible to provide an exhaustive list of such offenses. Thus, it remains the responsibility of each credit union to examine the elements of the statute under which an individual was convicted in order to determine whether it constitutes a crime involving dishonesty or breach of trust.

Another commenter urged the Board to not simply provide the statutory cite to those offenses that qualify for the ten year limitation on the Board providing consent (found at Section 205(d)(2)), but rather to list such offenses separately. The Board is not inclined to provide an exhaustive list. Congress could amend the provision, resulting in the list becoming outdated and inaccurate until the IRPS is appropriately modified. The Board believes the better approach is to cite the reader to the exact statutory provision that contains the most current list of offenses Congress has made subject to the ten year ban.

Five commenters expressed concerns as to whether the proposed IRPS would operate to require credit unions to conduct background checks or other inquiries of existing employees or institution-affiliated parties, if such investigations were not performed at the time those persons became affiliated with the credit union. In that regard, the Board would note that the prohibition of Section 205(d) has existed in some form since 1970. Since that date, credit unions have been required to make a diligent inquiry as to whether prospective employees or institution-affiliated parties came within the prohibition imposed by Section 205(d). Section 205(d)(1)(B) contains a criminal provision that applies to credit unions and therefore, credit unions should determine for their own protection whether they have sufficiently examined the background of those previously allowed to serve as employees or institution-affiliated parties.

Another commenter requested the Board to make clear that credit unions need not conduct background checks of prospective employees, but rather permit reliance on answers given by applicants. As stated in the proposed IRPS, “The NCUA believes that at a minimum, each insured credit union should establish a screening process which provides the insured credit union with information concerning any convictions or pretrial diversion programs pertaining to a job applicant. This would include, for example, the completion of a written employment application which requires a listing of all convictions and pretrial diversion programs.” The Board is cognizant that background checks are costly and time-consuming. Therefore, the Board agrees with the commenter that credit unions are normally justified in relying on a job applicant's answers regarding past criminal history. However, if a credit union has reason to believe that an applicant was not being truthful, further inquiry into the person's past might be necessary under the circumstances.

In order to provide more guidance to credit unions regarding screening of prospective employees, one commenter suggested the Board issue guidance similar to that published by the FDIC on the same topic. We understand the guidance referenced in the comment letter is FDIC's Financial Institution Letter FIL-46-2005, dated June 1, 2005, and entitled “Pre-Employment Background Screening.” The guidance in FIL-46-2005, while perhaps useful, is beyond the scope of this IRPS. However, the agency will consider addressing the subject in another forum in the future.

One commenter asked for guidance as to whether “good faith compliance with a similar state law may satisfy the requirements under” Section 205(d). The statute cited by the commenter was a New York law that prevented denial of employment because of a prior criminal conviction unless certain other factors were met. The Board disagrees that reliance on a state law that conflicts with the prohibition imposed by Section 205(d) satisfies the requirements of the federal statute. The Board believes that in this circumstance, Section 205(d), as a federal statute, pre-empts any state law that conflicts with it. 2 Consequently, federally insured credit unions must comply with Section 205(d), even if doing so would appear to be in conflict with a state employment law.

Two commenters suggested that the IRPS specify the length of time the Board would take to act on an application submitted for consent under Section 205(d). One commenter suggested the Board should be able to act on an application within fourteen business days; another suggested within five days. The Board appreciates the credit union community's desire for certainty as to how quickly applications under Section 205(d) will be processed. However, each application is fact specific and varies in complexity. For that reason, the Board concludes that it is impracticable to set a time table for action on such applications. Past applications that have been submitted to the Board have generally been adjudicated within 60 days from submission. In most cases, the time was significantly less. The Board is committed to deciding applications for consent in the future as quickly as possible.

With respect to the factors the Board will consider when evaluating an application under Section 205(d), one commenter suggested the IRPS include two provisions contained in FDIC's regulatory list of factors. Specifically, one of the suggested additions was a provision that would require the Board to consider whether a person's participation in the affairs of the credit union would constitute a threat to its safety or soundness or the interest of its members, or would threaten to impair public confidence in the credit union. The other suggested addition would address whether the person would be eligible for bond coverage.

The Board believes the first suggested provision is a valuable factor to be considered and accordingly will add the additional criteria to the final IRPS. Regarding the second suggestion, the Board notes that the proposed IRPS contained a similar provision to that suggested (“(6) The applicability of the insured institution's fidelity bond coverage to the person;”). Thus, because of the similarity of the two provisions, the Board will retain the criteria unmodified from the proposed IRPS.

Accordingly, and except as discussed above, the Board adopts IRPS 08-1 as proposed.

The Regulatory Flexibility Act requires that NCUA prepare an analysis describing any significant economic impact agency rulemaking may have on a substantial number of small credit unions. 5 U.S.C. 601 et seq. For purposes of this analysis, NCUA considers credit unions under $10 million in assets as small credit unions. Since the requirements in this IRPS are generally restatements of requirements in other laws, NCUA does not believe this IRPS will have a significant economic impact on a substantial number of small credit unions.

This IRPS contains an application requirement. As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), NCUA submitted a copy of the proposed IRPS to the Office of Management and Budget (OMB) for its review and approval. OMB approval of the Collection of Information is still pending.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This IRPS applies to all federally-insured credit unions, but does not have substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this IRPS does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that the IRPS would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act of 1999, Public Law 105-277, 112 Stat. 2681 (1998).

This Interpretive Ruling and Policy Statement (IRPS) provides requirements, direction, and guidance to federally-insured credit unions (insured credit unions) and individuals regarding the prohibition imposed by operation of law by Section 205(d) of the Federal Credit Union Act (FCU Act) (12 U.S.C. 1785(d)). Section 205(d)(1) provides that, except with the prior written consent of the National Credit Union Administration (NCUA) Board, a person who has been convicted of any criminal offense involving dishonesty or breach of trust, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense may not:

• Become, or continue as, an institution affiliated party with respect to any insured credit union; or

• Otherwise participate, directly or indirectly, in the conduct of the affairs of any insured credit union.

Section 205(d)(1)(B) further provides that an insured credit union may not allow any person described above to engage in any conduct or to continue any relationship prohibited by Section 205(d). The statute imposes a ten-year ban against the NCUA Board granting consent for a person convicted of certain crimes enumerated in Title 18 of the United States Code. In order for the NCUA Board to grant consent during the ten-year period, the NCUA Board must file a motion with, and obtain the approval of, the sentencing court. (Section 205(d)(2)). Finally, Section 205(d)(3) states that “whoever knowingly violates” (d)(1)(A) or (d)(1)(B) is committing a felony, punishable by up to five years in jail and a fine of up to $1,000,000 a day.

This IRPS provides guidance to credit unions and individuals regarding who is subject to the prohibition provision of Section 205(d). The IRPS defines what offenses come within the prohibition provision of Section 205(d) and thus require an application for the NCUA Board's consent to participate in the affairs of an insured credit union. The IRPS also identifies certain offenses that will be excluded from Section 205(d) and do not require the NCUA Board's consent. In order to assist those who may need the consent of the NCUA Board to participate in the affairs of an insured credit union, the IRPS explains the procedures to request such consent, specifies the application form that must be used, clarifies the duty imposed on credit unions by Section 205(d), and identifies the factors the NCUA Board will consider in deciding whether to provide such consent. Finally, the IRPS explains how an applicant could appeal a decision by the NCUA Board denying an application for its consent.

(a) Institution-affiliated parties.

Section 205(d) of the FCU Act applies to institution-affiliated parties, as defined by Section 206(r) of the FCU Act (12 U.S.C. 1786(r)), and others who are participants in the conduct of the affairs of an insured institution. Institution-affiliated party means:

(1) Any committee member, director, officer, or employee of, or agent for, an insured credit union;

(2) Any consultant, joint venture partner, and any other person as determined by the Board (by regulation or on a case-by case basis) who participates in the conduct of the affairs of an insured credit union; and

(3) Any independent contractor (including any attorney, appraiser, or accountant) who knowingly or recklessly participates in—

(i) Any violation of any law or regulation;

(ii) Any breach of fiduciary duty; or

(iii) Any unsafe or unsound practice, which caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, the insured credit union. (Section 206(r)).

All officials, committee members and employees of an insured credit union fall within the scope of Section 205(d) of the FCU Act. Additionally, anyone NCUA determines to be a de facto employee, applying generally applicable standards of employment law, will also be subject to Section 205(d).

Under Section 206(r), independent contractors are considered institution-affiliated parties if they knowingly or recklessly participate in violations, unsafe or unsound practices or breaches of fiduciary duty which are likely to cause significant loss to, or a significant adverse effect on, an insured credit union. As a general rule, an independent contractor who influences or controls the management or affairs of an insured credit union, would be covered by Section 205(d). In addition, a “person”' for purposes of Section 205(d) means an individual, and does not include a corporation, firm or other business entity.

(b) Participants in the affairs of an insured credit union.

A person who does not meet the definition of institution-affiliated party is nevertheless prohibited by Section 205(d) if he or she is considered to be participating, directly or indirectly, in the conduct of the affairs of an insured credit union. Whether persons who are not institution-affiliated parties are covered depends upon their degree of influence or control over the management or affairs of an insured institution. Those who exercise major policymaking functions of an insured institution would be deemed participants in the affairs of that institution and covered by Section 205(d). Participants in the affairs of a credit union is a term of art and is not capable of more precise definition. As the OTS stated in the preamble to its regulation regarding Section 19 of the FDIA: