Pursuant to Executive Order 12866, this final rule with request for comment has been determined to be a significant regulatory action. The administrative record is available for public inspection at the Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Room 6819 South Building, Washington, DC. In accordance with Executive Order 12866, NRCS conducted an economic analysis of the potential impacts associated with this program. A summary of the economic analysis can be found at the end of the regulatory certifications of the preamble, and a copy of the analysis is available upon request from Mark Rose, Program Manager, Farm and Ranch Lands Protection Program, Easement Programs Division, Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Room 6819 South Building, Washington, DC 20250.

The Regulatory Flexibility Act is not applicable to this final rule because NRCS is not required by 5 U.S.C. 553, or by any other provision of law, to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

In compliance with the National Environmental Policy Act, a Programmatic Environmental Assessment (EA) was prepared in association with the interim final rule. The analysis determined there will not be a significant impact to the human environment and as a result, an Environmental Impact Statement was not required to be prepared (40 CFR 1508.13). For this final rule, the agency has determined that there are no new circumstances or significant new information that has a bearing on environmental effects which warrant supplementing the previous EA and Finding of No Significant Impact (FONSI). The proposed changes identified in this final rule are considered minor changes that should be implemented for the program. The majority of these changes are administrative or technical changes to the regulation.

Copies of the EA and FONSI may be obtained from Matt Harrington, National Environmental Coordinator, Ecological Sciences Division, Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Room 6151 South Building, Washington, DC 20250. The EA and FONSI are also available at http://www.nrcs.usda.gov/programs/Env_Assess/.

NRCS has determined through a Civil Rights Impact Analysis that this final rule discloses no disproportionately adverse impacts for minorities, women, or persons with disabilities. The historical participation data presented in the analysis indicates that producers who are members of the protected groups have participated in NRCS conservation programs at parity with other producers. By extrapolating from historical participation data, NRCS has reasonably concluded that NRCS programs, including FRPP, will continue to be administered in a non-discriminatory manner. Outreach and communication strategies are in place to ensure that all producers will be provided the same information to allow them to make informed compliance decisions regarding the use of their lands that will affect their participation in the Department of Agriculture (USDA) programs. FRPP applies to all persons equally regardless of their race, color, national origin, gender, sex, or disability status. Therefore, this final rule will not result in adverse civil rights implications for women, minorities, and persons with disabilities.

Copies of the Civil Rights Impact Analysis are available from Mark Rose, Program Manager, Farm and Ranch Lands Protection Program, Easement Programs Division, Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Room 6819 South Building, Washington, DC 20250, or electronically at http://www.nrcs.usda.gov/programs/FRPP.

Section 2904 of the Food, Conservation, and Energy Act of 2008 (2008 Act) requires that the implementation of programs authorized under Title II of the Act be made without regard to the Paperwork Reduction Act of 1995 (Title 44 U.S.C. 3501 et seq. ). Therefore, NRCS is not reporting recordkeeping or estimated paperwork burden associated with this final rule.

NRCS is committed to compliance with the Government Paperwork Elimination Act and the Freedom to E-File Act, which requires government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. To better accommodate public access, NRCS has developed an online application and information system for public use.

This final rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. The rule is not retroactive and preempts State and local laws to the extent that such laws are inconsistent with this rule. Before an action may be brought in a Federal court of competent jurisdiction, the administrative appeal rights afforded persons at 7 CFR parts 11 and 614 must be exhausted.

Pursuant to section 304 of the Federal Crop Insurance Reform Act of 1994 (Pub. L. 103-354), USDA classified this rule as non-major. Therefore, a risk analysis was not conducted.

NRCS assessed the effects of this final rule on State, local, and Tribal governments, and the public. This action does not compel the expenditure of $100 million or more in any one year (adjusted by inflation) by any State, local, or Tribal governments, or anyone in the private sector; therefore, a statement under section 202 of the Unfunded Mandates Reform Act of 1995 is not required.

This final rule has been reviewed in accordance with the requirements of Executive Order 13132, Federalism. USDA has determined that this final rule conforms with the Federalism principles set forth in the Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities on the various levels of government. Therefore, USDA concludes that this final rule does not have Federalism implications.

This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. NRCS has assessed the impact of this final rule on Indian Tribal governments and concluded that this final rule will not negatively affect Indian Tribal governments or their communities. The rule neither imposes substantial direct compliance costs on Tribal governments nor preempts Tribal law. However, NRCS plans to undertake a series of at least six regional Tribal consultation sessions before January 15, 2011, on the impact of NRCS conservation programs and services on Tribal governments and their members to establish a baseline of consultation for future actions. Reports from these sessions will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. NRCS will respond in a timely and meaningful manner to all Tribal governments' requests for consultation.

Section 2904(c) of the 2008 Act requires that the Secretary use the authority in section 808(2) of Title 5, U.S.C., which allows an agency to forgo the Small Business Regulatory Enforcement Fairness Act of 1996 usual 60-day congressional review delay of the effective date of a regulation if the agency finds that there is a good cause to do so. NRCS hereby determines that it has good cause to do so in order to meet the congressional intent to have the conservation programs authorized or amended by Title II of the 2008 Act in effect as soon as possible. Accordingly, this rule is effective January 24, 2011.

Section 2708, Compliance and Performance, added a paragraph to section 1244(g) of the Food Security Act of 1985 (1985 Act) entitled, Administrative Requirements for Conservation Programs, which states the following:

“(g) Compliance and performance.—For each conservation program under Subtitle D, the Secretary will develop procedures—

(1) To monitor compliance with program requirements;

(2) To measure program performance;

(3) To demonstrate whether long-term conservation benefits of the program are being achieved;

(4) To track participation by crop and livestock type; and

(5) To coordinate activities described in this subsection with the national conservation program authorized under section 5 of the Soil and Water Resources Conservation Act of 1977 (16 U.S.C. 2004).”

This new provision presents in one place the accountability requirements placed on the agency as it implements conservation programs and reports on program results. The requirements apply to all programs under Subtitle D, including the Wetlands Reserve Program, the Conservation Security Program, the Conservation Stewardship Program, the FRPP, the Grassland Reserve Program, the Environmental Quality Incentives Program (EQIP) (including the Agricultural Water Enhancement Program), the Wildlife Habitat Incentive Program, and the Chesapeake Bay Watershed initiative. These requirements are not directly incorporated into these regulations, which set out requirements for program participants. However, certain provisions within these regulations relate to elements of section 1244(g) of the 1985 Act and the agency's accountability responsibilities regarding program performance. The existing procedures described below relate to meeting the requirements of section 1244(g) of the 1985 Act and agency expectations for improving its ability to report on each program's performance and achievement of long-term conservation benefits. Also included is reference to the sections of these regulations that apply to program participants and that relate to the agency accountability requirements as outlined in section 1244(g) of the 1985 Act.

Monitor compliance with program requirements. NRCS has established application procedures to ensure that participants meet eligibility requirements and follow-up procedures to ensure that participants are complying with the terms and conditions of their contractual arrangement with the government, and that the installed conservation measures are operating as intended. These and related program compliance evaluation policies are set forth in agency guidance (Conservation Programs Manual_440_Part 512 and Conservation Programs Manual _440_Part 508) ( http://directives.sc.egov.usda.gov/ ). The program requirements applicable to FRPP participants that relate to compliance are set forth in these regulations in § 1491.4 Program requirements, § 1491.20 Cooperative agreements, and § 1491.22 Conservation easement deeds. These sections make clear the general program eligibility requirements, obligations related to easements, and requirements for operating and maintaining FRPP-funded activities.

Measure program performance. Pursuant to the requirements of the Government Performance and Results Act of 1993 (Pub. L. 103-62, Sec. 1116) and guidance provided by the Office of Management and Budget (OMB) Circular A-11, NRCS has established performance measures for its conservation programs. Program-funded conservation activity is captured through automated field-level business tools and the information is made publicly available at http://ias.sc.egov.usda.gov/PRSHOME/ . Program performance also is reported annually to Congress and the public through the annual performance budget, annual accomplishments report, and the USDA Performance Accountability Report. Related performance measurement and reporting policies are set forth in agency guidance (GM_340_401 and GM_340_403) ( http://directives.sc.egov.usda.gov/ )).

The conservation actions undertaken by participating entities are the basis for measuring program performance—specific actions are tracked and reported annually, while the effects of those actions relate to whether the long-term benefits of the program are being achieved. The program requirements applicable to participants that relate to undertaking conservation actions are set forth in these regulations in § 1491.20 Cooperative agreements and § 1470.22 Conservation easement deeds. These sections make clear participating entity obligations for acquiring easements and conservation stewardship activities, which in aggregate result in the program performance that is reflected in agency performance reports.

Demonstrating the long-term natural resource benefits achieved through conservation programs is subject to the availability of needed data, the capacity and capability of modeling approaches, and the external influences that affect actual natural resource conditions. While NRCS captures many measures of output data, such as acres of conservation practices, it is still in the process of developing methods to quantify the contribution of those outputs to environmental outcomes.

NRCS currently uses a mix of approaches to evaluate whether long-term conservation benefits are being achieved through its programs. Since 1982, NRCS has reported on certain natural resource status and trends through the National Resources Inventory (NRI), which provides statistically reliable, nationally consistent land cover/use and related natural resource data. However, lacking has been a connection between these data and specific conservation programs. 1 In the future, the interagency Conservation Effects Assessment Project (CEAP), which has been underway since 2003, will provide nationally consistent estimates of environmental effects resulting from conservation practices and systems applied. CEAP results will be used in conjunction with performance data gathered through agency field-level business tools to help produce estimates of environmental effects accomplished through agency programs, such as the Conservation Stewardship Program. In 2006, a Blue Ribbon panel evaluation of CEAP  2 strongly endorsed the project's purpose, but concluded “CEAP must change direction” to achieve its purposes. In response, CEAP has focused on priorities identified by the panel and clarified that its purpose is to quantify the effects of conservation practices applied on the landscape. Information regarding CEAP, including reviews and current status is available at ( http://www.nrcs.usda.gov/technical/NRI/ceap/. Since 2004 and the initial establishment of long-term performance measures by program, NRCS has been estimating and reporting progress toward long-term program goals. Natural resource inventory and assessment and performance measurement and reporting policies are set forth in agency guidance (GM_290_400; GM_340_401; and GM_340_403) ( http://directives.sc.egov.usda.gov/ ).

Demonstrating the long-term conservation benefits of conservation programs is an agency responsibility. Through CEAP, NRCS is in the process of evaluating how these long-term benefits can be achieved through the conservation easements acquired through FRPP and conservation practices and systems applied by participants under each of its programs. The FRPP program requirements applicable to participants that relate to producing long-term conservation benefits are located in § 1491.20 Cooperative agreements and § 1491.22 Conservation easement deed. These requirements and related program management procedures supporting program implementation are set forth in agency guidance (Conservation Programs Manual 440_Part 512 and Conservation Programs Manual _440_Part 508).

The 2008 Act reauthorized and expanded on a number of elements of the Soil and Water Resources Conservation Act (RCA) related to evaluating program performance and conservation benefits. Specifically, the 2008 Act added a provision stating:

“Appraisal and inventory of resources, assessment and inventory of conservation needs, evaluation of the effects of conservation practices, and analyses of alternative approaches to existing conservation programs are basic to effective soil, water, and related natural resources conservation.”

The program, performance, and natural resource and effects data described previously will serve as a foundation for the next RCA, which will also identify and fill, to the extent possible, data and information gaps. Policy and procedures related to the RCA are set forth in agency guidance (GM_290_400 and GM_130_402) ( http://directives.sc.egov.usda.gov/ ).

The coordination of the previously described components with the RCA is an agency responsibility and is not reflected in these regulations. However, it is likely that results from the RCA process will result in modifications to the program and performance data collected, to the systems used to acquire data and information, and potentially to the program itself. As the Secretary proceeds to implement RCA in accordance with the statute, the approaches and processes developed will improve existing program performance measurement and outcome reporting capability and provide the foundation for improved implementation of the program performance requirements of section 1244(g) of the 1985 Act.

The FRPP is an important tool available to farmers, ranchers, and their communities to preserve the agricultural landscape. The local community is a key driver in farmland  3 protection efforts and is a major beneficiary, as well as incurring much of the cost. Because farmland retention efforts are driven by local decisionmakers and involve site-specific impacts that affect a host of intangible values (scenic views, environmental amenities, etc. ), performing a traditional nationwide final benefit-cost analysis with a national scope is difficult. Despite limitations, a benefit-cost analysis offers a means to identify the main costs and describe the benefits, albeit in qualitative terms, and explore policy and program alternatives.

The main expenditure is funding for the purchase of development rights (PDR). The economic costs of farmland protection programs include the foregone economic activities fostered by development that would have taken place in the absence of FRPP and any resulting secondary effects such as the reduced tax base. FRPP is only one source of funds to offset the initial acquisition costs of PDRs for these individuals and communities. The cumulative (1996-2010) contributions on 3,489 enrolled parcels consisting of 808,515 acres includes: FRPP share—$787,444,975; entity share—$1,088,313,653; landowner donations—$347,253,305; and combined value—$2,223,011,933. The foregone economic activities need to be compared with the incremental benefits of protecting farmland, which are largely intangible, such as environmental goods and services from the land and non-market valued amenities brought about by NRCS funding. Non-market valued amenities include the public's desire for open spaces and scenic views. Also, the distributional effects of retaining an active agricultural sector in the local communities must be acknowledged.

The FRPP Final Benefit-Cost Analysis is posted at http://www.nrcs.usda.gov/programs/farmbill/2008/benefitcostanalysis.html . Only qualitative descriptions of the possible social benefits of farmland protection are presented in the main text of this analysis. These potential benefits are more fully described in Appendix A. Appendix B presents a method, that when refined, can potentially be used to quantitatively assess the effects of FRPP. A rigorous treatment of these benefits is not possible at this time due to a number of reasons, including the limitations in the willingness-to-pay methodology and uncertainties about extent, locations, and patterns of future development pressure.

The 2008 Act reauthorized the FRPP through FY 2012 and increased program funding. Mandatory changes were made to the program purpose, role of the United States Government, enrollment process, eligible land, and cost-sharing requirements for entities. In addition, the 2008 Act provided discretion for the agency in interpreting aspects of the mandatory provisions and other discretionary elements. The major policy scenarios analyzed in this benefit-cost analysis include:

1. Increased Funding—Authorized funding increases from $97 million in FY 2008 to $200 million in FY 2012.

2. Land Eligibility—Compensate landowners for more forest land acreage and ensure that enrolled forest land contributes to natural resource benefits.

3. Certification Process—Establish a certification process and deliver increased flexibilities for certified entities.

4. Simplifying Participation—Establish a simple process for entities to select an appraisal method and use their own terms and conditions in easement deeds, as approved by the Secretary.

5. Impervious Surface Restrictions—Establish clear guidelines for entities to consult for impervious surface restrictions.

6. Non-Federal Contributions—Establish a process to accept contributions of non-Federal funds.

7. Program Performance—Establish procedures to monitor and report on program performance.

Overall, FRPP assistance to local farmland protection programs is important from the distributional effects perspective. The FRPP attempts to assist these local decisionmakers in their efforts to protect farmland. The presence of active farmland retention programs could be interpreted as empirical evidence that local decisionmakers anticipate positive net benefits from protecting farmland, such as preventing undesirable changes to the landscape and adverse impacts on the natural environment that can result from development locally. From a national perspective, the assessment of benefits and costs is incomplete due to lack of information in existing literature. The assessment of benefits involves amenities that are indirectly traded in markets ( e.g., scenic view). The assessment of costs involves forecasting the level of economic activities that would have taken place in the absence of FRPP. The potential effects on benefits and costs for most of the areas of policy discretion covered in this analysis consequently are addressed qualitatively.

On January 16, 2009, NRCS published in the Federal Register an interim final rule at 74 FR 2809 with a 60-day public comment period that ended on March 17, 2009.

Section 2401 of the 2008 Act amended sections 1238H and 1238I of the 1985 Act to reauthorize and make significant amendments to FRPP. To implement these amendments, the interim final rule made the following changes to the FRPP regulation at 7 CFR part 1491:

• Administration—Clarified that a landowner's eligibility must be determined, as well as the land eligibility and the eligibility of the entity that receives the cost-share assistance to purchase the easement.

• Definitions—Modified several definitions of the previous rule. For instance, the definition of agriculture uses was amended to use more current and correct terminology and to broaden the definition to reflect the new statutory program purposes.

• Program Requirements

○ Incorporated the statutory requirement that NRCS provide funding for conservation easements or other interests in land versus acquiring a Federal interest in land, thereby shifting the program focus from purchasing conservation easements to facilitating the purchase of conservation easements by eligible entities.

○ Added that in States that limit the term of the easement, the term of the easement must be the maximum allowed by State law.

○ Set forth the requirements for a new certification process that an entity must meet in order to become a certified entity, as well as the process for review and revocation of certification.

○ Added a new statutory eligibility land category, “to further a State or local policy consistent with the purposes of the program.”

○ Established that farms with at least 10 acres in forest cover or 10 percent in forest cover required the development of a forest management plan. Farms that were less than 100 acres in size with less than 10 acres of forest were not required to have a forest management plan developed to be eligible.

○ Clarified that lands currently under ownership by an entity whose purpose is to protect agricultural uses and related conservation values were not eligible for the program, as lands owned by these entities were already protected.

○ Described the onsite and offsite conditions that were not compatible with the program's purposes.

○ Clarified that a landowner may submit an application on land on which the mineral estate is owned by someone other than the landowner, but that USDA reserved the right to determine the impacts of third party rights upon a potential easement and to deny funding where the purposes of the program could not be achieved.

○ Defined the industry-approved appraisal methods specified in the 2008 Act as the Uniform Standards of Professional Appraisal Practices or the Uniform Appraisal Standards for Federal Land Acquisition.

• Application Procedures—Established a new application process for the program. This new process established that the entity must submit an application to the State Conservationist in the State where the parcel(s) is located, and that the Chief determined whether an eligible entity qualified as a certified entity. Further, the interim final rule established that FRPP would be implemented using a continuous sign-up process, consistent with other NRCS conservation programs. The process allowed certified and non-certified eligible entities to compete under the same application and ranking process in order to simplify the application process and allowed parcels to obtain funding on equal resource-based terms, regardless of the status of the entity.

• Ranking Considerations and Proposal Selection—Established a new ranking process whereby NRCS evaluated the eligibility of both the landowner and the land prior to the scoring and ranking of the parcel for funding, because payment eligibility requirements for Adjusted Gross Income (AGI) 7 CFR part 1400 and land eligibility requirements for Highly Erodible Land and Wetland Conservation provisions at 7 CFR part 12 are a threshold requirement for program participation. In addition, parcels became ranked according to both national and State criteria. National ranking criteria were changed to reflect site (parcel) specific criteria rather than entity performance criteria, and language was added to clarify that the national requirements were mandatory for inclusion in the State ranking.

• Cooperative Agreements—Revised cooperative agreement requirements to reflect changes necessitated by the 2008 Act, including the change that FRPP funds are used to assist eligible entities with the purchase of rights in land rather than to purchase these rights directly by the United States. The interim final rule also incorporated the new requirement that the terms of agreements be a minimum of 5 years for certified entities and 3 years for other eligible entities.

• Substituting Parcels—Incorporated 2008 Act authorization to allow a cooperating entity to substitute pending offers within their cooperative agreement.

• Funding—Reflected the 2008 Act's change to the minimum entity cost-share, an amount not less than 25 percent of the acquisition purchase price.

• Conservation Easement Deeds

○ Deed Form —Incorporated changes made by the 2008 Act that allow eligible entities to use their own easement deeds submitted to and approved by NRCS in advance.

○ Contingent Right of Enforcement —Incorporated the 2008 Act requirement that the eligible entity include a contingent right of enforcement for the Secretary in the terms of the conservation easement deed. The purpose of this right is to ensure that the easement is enforced and that the Federal investment is protected. NRCS, in the interim final rule, interpreted the contingent right of enforcement to mean a vested real property right, providing the Secretary, on behalf of the United States, the right to enforce the terms of the easement for the duration of the easement.

○ Approval of Conservation Plan —Eliminated the requirement that conservation districts approve the conservation plan, as this was not always consistent with local practice.

○ Impervious Surfaces —Retained the impervious surface limit of 2 percent, but increased the impervious surface waiver to up to 10 percent from the prior policy of 6 percent.

• Violations and Remedies—Clarified that any cost recoveries levied by NRCS would be directed to the cooperating entity, not the specific landowner.

• Appeals—Replaced the term cooperating entity with eligible entity to refer to FRPP participants. This change ensured that all FRPP participants had the same rights of appeal. The interim final rule also clarified that only administrative actions were appealable, and once the easement was recorded, enforcement actions taken by NRCS were not subject to review under administrative appeal regulations. This change was consistent with appeal regulations at 7 CFR part 614 and 7 CFR part 11, as well as Federal real property law.

On July 2, 2009, NRCS published a correction to the interim final rule at 74 FR 31578 and opened the public comment period an additional 30 days. The correction made the following adjustments:

• Contingent Right of Enforcement—Clarified that the contingent right of enforcement established by the 2008 Act, and defined by the interim final rule as a Federal acquisition of a real property right, was instead a condition placed upon the award of financial assistance, and though a real property right, did not constitute an acquisition subject to Federal acquisition requirements.

• Lands Owned by State or Local Government—Incorporated additional flexibility into the definition of landowner such that it did not preclude the ability of NRCS to help facilitate the placement of a conservation easement or other interest in land on properties in circumstances where an eligible entity purchased fee title to land temporarily and then re-conveyed those lands to a private landowner, such as purchasing farmland in foreclosure to prevent it from being sold at a sheriff's sale for non-agricultural development.

• Requests for Public Input—Sought public feedback as to whether FRPP could be utilized to further the Nation's efforts with regard to encouraging renewable energy production, promoting energy conservation, mitigating the effects of climate change, facilitating climate change adaptation, or reducing net carbon emissions.

OMB recently published two regulations, 2 CFR part 25 and 2 CFR part 170, to assist agencies and recipients of Federal financial assistance comply with the Federal Funding Accountability and Transparency Act of 2006 (FFATA) (Pub. L. 109-282, as amended). Both regulations have implementation requirements beginning October 1, 2010.

The regulations at 2 CFR part 25 require, with some exceptions, recipients of Federal financial assistance to apply for and receive a Dun and Bradstreet Universal Numbering Systems (DUNS) number and register in the Central Contractor Registry (CCR). The regulations at 2 CFR part 170 establish new requirements for Federal financial assistance applicants, recipients, and sub recipients. The regulation provides standard wording that each agency must include in its awarding of financial assistance that requires recipients to report information about first-tier sub awards and executive compensation under those awards.

NRCS has determined that 2 CFR part 25 and 2 CFR part 170 apply to certain awards of financial assistance provided under FRPP. Therefore, NRCS has incorporated, by reference, these registration and reporting requirements at § 1491.20 and will include the requisite provisions as part of the FRPP contract.

NRCS received approximately 624 comments on the interim final rule and its amendment. This section of the preamble discusses all of the relevant comments, except for those that expressed agreement with provisions of the interim final rule. NRCS has organized the discussion alphabetically by topic.

Comments: NRCS received seven comments recommending NRCS eliminate application of Department of Justice title standards for projects that remain under 2007-2008 cooperative agreements. Projects funded in FY 2009, and thereafter, are not subject to review under the Department of Justice title standards.

Response: FRPP, as authorized by the Farm Security and Rural Investment Act of 2002 (2002 Act), Public Law 107-171, required the Secretary to acquire a conservation easement or other interest in land. Parcels funded under FY 2007-2008 cooperative agreements are subject to the 2002 Act requirements. Since NRCS acquires a co-grantee interest in the conservation easements funded in FY 2007-2008, the transactions are subject to Federal real property acquisition requirements, including the Department of Justice title standards. NRCS does not have the authority to waive these title standards. Parcels funded in FY 2009 and hereafter are authorized by the 2008 Act, and are financial assistance transactions not subject to Federal real property acquisition requirements; therefore, no changes were made to the final rule.

Comments: NRCS received 64 comments regarding the references in § 1491.4 to certified entities. These comments urged NRCS to develop a robust certification program for certified entities. NRCS received 27 comments recommending that NRCS rewrite the rule to develop a certification program that, for certified entities, would minimize title reviews in particular.

Response: NRCS agrees that a more robust certification process will improve FRPP implementation. The criteria for certification outlined in the 2008 Act are nearly identical to the criteria for eligibility that existed in FRPP policy prior to 2008 Act enactment, with the exception of closing efficiency. Therefore, the interim final rule mirrored the 2008 Act by identifying very few differences between the agreements with certified entities and agreements with other eligible entities.

The 2008 Act transformed FRPP from a Federal real property acquisition program to a program where NRCS provides financial assistance for the purchase of a conservation easement by an eligible entity. Consistent with this shift in program purpose, NRCS has made further changes in this final rule to the certification criteria and process outlined in § 1491.4 to minimize the need for NRCS oversight of individual easement transactions. NRCS still obtains certain safeguards in relation to an entity's easement acquisition, real property such as review of template deeds and the incorporation of a right of enforcement; however, the actual easement acquisition process is the responsibility of partners. The certification procedures set forth in the interim final rule did not address this shift fully.

NRCS believes that the revisions to § 1491.4 provide a more comprehensive certification program that will better implement the 2008 Act's shift in program purpose and help NRCS focus on other aspects of program implementation to better protect the long-term viability of higher quality and more vulnerable agricultural lands. Upon review and consideration of the respondents' comments, NRCS has adopted criteria to improve identification of eligible entities that have the capability to manage FRPP lands. Additionally, a more comprehensive certification program gives NRCS greater administrative flexibility in implementing the FRPP program.

In particular, NRCS reviews criteria during the certification process, including an entity's acquisition, management, and enforcement standards and processes to ascertain whether the entity exhibits sufficient capability and experience to manage FRPP financial assistance prudently. NRCS has determined that the certification criteria in the interim final rule unnecessarily limit the ability to identify eligible entities that have the resources and experience to assume the flexibility afforded by certification status. Therefore, a primary qualification for certification status is that an eligible entity must hold and manage a minimum of 25 easements. NRCS derived this number from the total acres owned and under easement by land trusts, the total number of land trusts, and the average size FRPP easement. Land trust figures are taken from the Land Trust Alliance 2005 National Land Trust Census Report.

Additionally, for an eligible entity to qualify for certification, it must hold and manage a minimum of five FRPP conservation easements and have acquired these easements using industry-approved appraisals, title clearance reviews, and deed reviews for each transaction. This minimum number of FRPP easements will demonstrate the entity has experience with FRPP cooperative agreements and FRPP easement acquisition process. Entities may request in writing a waiver of the 25-easement requirement from the Chief. The certification of an entity does not extend to eligible entities funded through the certified entity if the eligible entity is not held to the same standards as the certified entity, and the certified entity is not identified as a co-grantee in the conservation easement deed. If an eligible entity does not meet the certification criteria, NRCS will not certify the eligible entity and will review each transaction's procedures, including the appraisal, deed, and title to ensure that the Federal investment is protected.

As to the greater administrative flexibility provided by certification, NRCS will not require NRCS' appraisal review, title review, and conservation easement deed review in advance of easement acquisition since a certified entity demonstrates, during the certification process, that it has credible processes of its own that ensure its conservation easements will meet FRPP purposes. Therefore, a certified entity will be authorized to close on individual easement transactions without prior NRCS review and approval of the particular deed, title, or appraisal. If any of these certification criteria are not met, NRCS may still certify the entity, albeit with conditions, such as a requirement that the entity adjust those aspects of its program, e.g., particular deed provisions that are needed to ensure that the acquired conservation easements meet FRPP purposes and are enforceable over the long term.

Regardless of the certification status of an entity, NRCS will conduct quality review checks upon a percentage of transactions, and if any aspect of a transaction fails, NRCS will provide the entity with time to rectify the errors, a minimum of 180 days. If a certified entity fails to do so, the State Conservationist will send, by certified mail, return receipt requested, written notice of proposed decertification of the certified entity's certification status or eligibility. The certified entity may contest the Notice of Proposed Decertification in writing to the State Conservationist within 20 calendar days of receipt of the notice of proposed decertification. If the State Conservationist decides to decertify, the entity will be given written notice of the determination which will set forth the reasons for decertification, the period of decertification, and the scope of decertification. If the State Conservationist decides not to decertify the entity, the entity will be given written notice of that determination. The decertification determination will be based on the administrative record which will be comprised of the Notice of Proposed Decertification and supporting documents, any documents pertaining to the entity's lack of compliance with the certification criteria, and if submitted, the entity's written response and supporting documentation. The Easement Programs Division will maintain a national list of certified and de-certified entities that each NRCS State office will check prior to entering into a cooperative agreement. The period of decertification may not exceed 3 years, and the entity may reapply for certification after the period of decertification has expired. NRCS will recertify an entity that meets the requirements as outlined under § 1491.4(d).

NRCS added a new paragraph (e) to § 1491.4 to provide additional clarification to the certification process and redesignated paragraphs (e), (f), (g), and (h) as (f), (g), (h), and (i). A new paragraph (j) is added to provide policy on substituting parcels.

This new approach to certification was not identified in the interim final rule and instead, is based upon comments received from various respondents to the interim final rule. Since the public has not had the opportunity to comment upon this new approach, NRCS will receive public comment on the certification and decertification approach set forth in this rulemaking. NRCS is not soliciting comments on any other aspect of this FRPP final rulemaking since NRCS has already solicited and received public comments on these matters as identified herein.

Comments: NRCS received four comments suggesting a change to § 1491.4(d)(5) of the interim final rule to clarify that a dedicated fund be a necessary requirement for certified entities that are nongovernmental organizations. The fund is in place for enforcement purposes, and the certified entities that are required to have a dedicated fund must have a sufficient annual budget designation for annual monitoring and administrative functions for conservation easement management purposes.

Response: NRCS concurs with the recommendation made by the respondents. The definition of dedicated fund was modified to clarify that a dedicated fund is required for certified entities that are nongovernmental organizations. The purpose of the dedicated fund is to provide a long-term source of funds for management and monitoring of easements acquired and held by nongovernmental organizations. Dedicated funds are not necessary for certified entities which are State and local units of government, because such entities typically have taxing authority for the long-term operation and management of easement programs. In contrast, nongovernmental organizations typically rely on private funding to support their operations and management of easements, thus a dedicated fund ensures a long-term source of funds for such activities. The specific amounts required in the dedicated fund are clarified in policy. The current requirements for the capitalization of the endowment funds are $50,000 for legal defense and $10,000 per easement for management and monitoring. NRCS will adjust the amount required for the dedicated fund based on NRCS' experience, feedback from the nongovernmental organizations, and standards for such accounts within the farmland protection community.

Comments: NRCS received 33 comments recommending that NRCS conduct only spot checks of appraisals rather than a review of every appraisal.

Response: NRCS will conduct appraisal reviews differently depending upon whether an eligible entity has been certified or not. As described earlier in this preamble, NRCS will only spot check a percentage of a certified entity's transactions. Additionally, the spot checks of a certified entity's appraisals will be to ensure the certified entity followed its appraisal procedures properly, including any adjustments to those procedures required by NRCS as part of certification.

However, for other eligible entities, NRCS will still require more extensive appraisal reviews, including technical and administrative reviews, to ensure that the appraisal meets the detailed NRCS standards and specifications required under the cooperative agreement. Appraisal reviews document the validity of the expenditure of funds. For appraisals submitted by eligible entities that are not certified, agency policy requires a technical review of the first appraisal report that is done by a particular appraiser each year. NRCS will conduct technical review on a minimum of 10 percent of appraisals submitted for approval in each State each year. NRCS standards require sufficient detail to allow for its review of an appraiser's work and to ensure that the less experienced eligible entities are appropriately following procedures.

Comments: NRCS received 44 comments recommending that NRCS not require conservation easement deed templates used by eligible entities to be submitted to National Headquarters, nor require review and approval of each transaction's deed in advance of use. Five respondents recommended that NRCS continue to review conservation easement deeds.

Response: Section 1238I(g)(4) of the 1985 Act authorizes an eligible entity to use its own terms and conditions in conservation easements and other interests in land as approved by the Secretary as long as the terms and conditions “(A) are consistent with the purposes of the program; (B) permit effective enforcement of the conservation purposes of such easements or other interests; and (C) include a limit on the impervious surfaces to be allowed that is consistent with the agricultural activities to be conducted.” As described above, NRCS agrees that once a template easement deed form has been reviewed and approved, certified entities do not need to seek prior NRCS review and approval of the conservation deed for each transaction. However, for eligible entities that are not certified, NRCS will continue to require that the eligible entity submit to NRCS the deed, title, and appraisal for review prior to closing to ensure that such documents meet NRCS specifications. No changes were made to the final rule.

Comments: NRCS received one comment requesting NRCS be aware that State statutes often specify the deed requirements for eligible entities.

Response: NRCS recognizes that State statutes require particular provisions, and NRCS will work with eligible entities to address any conflicts between State statutes and FRPP program requirements. However, NRCS must ensure that deed terms are consistent with FRPP purposes as described above. No changes were made to the final rule.

Comments: NRCS received one comment asserting that the Federal Government has no authority to enforce a prohibition on future State or local condemnation. The respondent maintains that the Federal Government's contingent right of enforcement is merely a mechanism to ensure terms and conditions of FRPP easements are honored. The respondent asserted that FRPP purposes can be guaranteed by other means such as requiring a proportionate share of condemnation proceeds be paid to the Federal Government. The respondent contends that the interim final rule's current condemnation prohibition is causing many States to forego participation in FRPP.

Response: Under the 2008 Act, Congress required that a right of enforcement for the Secretary be included in FRPP funded deeds. This right of enforcement is held by the Secretary and runs with the land. As such, it is a vested interest in real property. Under well-established constitutional principles, State and local governments do not have the authority to condemn a Federal interest in land.

Comments: NRCS received one comment recommending that NRCS' conservation plans identify conservation values.

Response: NRCS agrees with the respondent. NRCS' conservation plans already identify conservation values.

Comments: NRCS received several comments related to NRCS' identification of various activities as agricultural uses or non-agricultural uses. NRCS received three comments recommending that NRCS allow on-farm energy production in conservation easement deeds. NRCS also received three comments that argued that the restriction on subdividing a parcel under a FRPP conservation easement deed contradicts State regulations or statutes, and has no basis in the 2008 Act. Two comments identified that the more restrictive conservation easement deed requirements spelled out in the interim final rule and the new cooperative agreement template, threaten Maine farmers in a number of ways including failure to address on-farm energy production and use. Seven respondents argued that limitations on signage and snowmobiles threaten Maine farmers. One respondent asserted that the requirement to forego future rights to residential development contradicts Maryland's regulations or statutes, and has no basis in the 2008 Act. Three comments recommended allowing farms enrolled in FRPP to host non-farm rural enterprises.

Response: NRCS identifies agricultural and non-agricultural uses pursuant to its responsibilities under FRPP. In particular, the purpose of FRPP as stated in the 2008 Act is to “protect the agricultural use and related conservation values of eligible land by limiting non-agricultural uses of that land.” Additionally, the identification of agricultural and non-agricultural uses is relevant in regard to the terms and conditions of the cooperative agreement. Section 1238I(g)(1) of the 1985 Act requires NRCS to stipulate in the cooperative agreement the terms and conditions under which cost-share assistance is provided, and section 1238I(g)(4) of the 1985 Act authorizes NRCS to review the terms of an eligible entity's conservation easement to ensure the terms and conditions are consistent with FRPP. Activities that are related to agricultural production or directly support the agricultural operations are agricultural uses of the land. Other activities, though they commonly may occur on agricultural lands, are not agricultural uses, and thus, NRCS may require eligible entities to incorporate limitations into the terms of approved conservation easement deeds.

For example, the on-farm production of energy presents a combination of agricultural and non-agricultural uses, and NRCS must find a balance between those uses. Where the energy produced on a farm is for on-farm usage, NRCS considers such activity an agricultural use. However, the same farmers who wish to protect their farms from development are often the same landowners who care about meeting the Nation's future energy needs. While the on-farm production of energy for off-farm use is not an agricultural use, NRCS believes that a complete prohibition of such uses is not required by statute. Thus, NRCS will work with eligible entities to develop appropriate limitations in the deed terms that focus on the impact that such activities have upon the particular easement area's agricultural viability, such as proposed siting and density restrictions, rather than strictly prohibiting such uses.

The more complex activities to address in conservation easement deeds are those that, when exercised by a farmer's family and its guests, should be authorized, but when exercised on a commercial scale, may represent a conversion to non-agricultural use. However, if the activity does not interfere with the agriculture use, like snowmobiling, it may be considered a permitted activity. Other activities, such as the development of all terrain or off-road vehicle recreation, significantly impacts the resource and represents conversion of a farm to non-agricultural use, and thus, should be prohibited. NRCS recognizes that a balance must be struck between authorized, prohibited, and restricted activities within the terms of a conservation easement deed to ensure protection of the agricultural viability of the land while allowing flexibility for reasonable use of the land into the future. NRCS will continue to work with eligible entities to develop the appropriate balance.

Comments: NRCS received 11 comments recommending that NRCS eliminate the NRCS reserved right.

Response: Section 1238I(f)(2) of the 1985 Act requires that a “contingent right of enforcement” be included in the terms of a conservation easement or other interest in eligible land that is purchased using cost-share assistance provided under the program. The contingent right of enforcement is required by statute, protects the Federal investment, and cannot be eliminated by NRCS.

Comments: NRCS received three comments stating that NRCS should not allow cooperating entities to run FRPP.

Response: While NRCS works closely with cooperating entities, NRCS will not abdicate its responsibility to maintain quality assurance oversight over the transactions funded through FRPP. NRCS requires cooperating entities to meet eligibility requirements, and requires that each transaction funded also meets NRCS eligibility and priority requirements. For example, rather than simply adopting the ranking criteria of the cooperating entity, NRCS reviews and ranks the transactions it funds using NRCS national and State criteria. No changes were made to the final rule.

Comments: NRCS received one comment recommending that NRCS not involve local conservation districts in approving the conservation plan.

Response: Section 1491.22(e) of the interim final rule makes clear that local conservation districts are not involved in approving conservation plans. While district staff is often involved in the development of the conservation plan, the conservation plan is ultimately developed by NRCS, in consultation with the landowner, and implemented according to the NRCS Field Office Technical Guide (FOTG).

Comments: NRCS received one comment recommending that under § 1491.22(g) of the interim final rule, the conservation easement review conducted by NRCS prior to easement closing should be limited to a determination that the conservation easement deed conforms to the conservation easement form contained in the executed cooperative agreement.

Response: The acceptance referenced in § 1491.22(g) of the interim final rule pertains to the land, not to the terms of the conservation easement deed. However, all of the terms contained in the conservation easement deed are not necessarily contained in the conservation easement form in the cooperative agreement. For example, the deed template does not identify the grantors and the capacity in which they are conveying the land. During its reviews, NRCS has identified many situations where the draft deed for a particular transaction did not correctly identify the grantors or the land area to be encumbered.

Comments: NRCS received four comments that the general indemnification requirement of § 1491.22(j) of the interim final rule contradicts State regulations or statutes and has no basis in the 2008 Act. The respondents argue that NRCS should allow entities to modify the indemnification language of conservation easement deeds.

Response: NRCS recognizes the limitations that public entities have in regards to entering into indemnification agreements. NRCS, working with the Office of the General Counsel, modifies its indemnification language for public entities to comply with State laws while ensuring adequate protection to the United States. Although the 2008 Act does not specifically mention addressing potential liability issues, it is common practice for conservation easement holders to include such clauses. Moreover, as part of the NRCS duty to protect the public interest, it is good administrative practice to include such clauses.

Comments: NRCS received one comment recommending that language be added requiring NRCS to review and approve any amendments to easement deeds.

Response: NRCS agrees with this recommendation. The language in § 1491.22(k) of the interim final rule has been modified to require that NRCS must review and approve any material amendments to conservation easement deeds.

Comments: NRCS received 63 comments concerning impervious surfaces in § 1491.22(i). The comments assert that, despite congressional intent and statutory direction, NRCS continues to impose a standard of no more than 2 percent impervious surfaces on FRPP easement areas. The respondents asserted that NRCS should not set a numerical limit, but instead allow eligible entities to use their own terms and conditions that are consistent with the agricultural activities to be conducted. NRCS also received 20 comments supporting an impervious surface limitation, and several respondents recommended that the impervious surface limit be scaled to the size of the easement so that smaller easements would be authorized to have a larger percentage in impervious surface. These respondents also recommended that State Conservationists have flexibility to approve a local entity's waiver processes for impervious surfaces if the processes are applied on a parcel-by-parcel basis.

Response: The purpose of the impervious surface standard is to limit the conversion of productive agriculture lands to non-agricultural use within the easement area. An impervious surface represents an irretrievable commitment of resources to a particular use, and thus, has an impact upon the long-term viability and adaptability of the agricultural operation. NRCS does not intend to limit the expansion, for example, of a confined animal or permanent greenhouse operation. However, NRCS will not permit the impervious surface of these operations to exceed the maximum allowed under § 1491.22(i) in the FRPP rule. Existing NRCS policy permits State Conservationists to waive the 2 percent impervious surface limitation on a parcel-by-parcel basis up to a maximum of 10 percent. In addition, NRCS has revised policy to allow eligible entities to develop and submit their own impervious surface waiver process to the State Conservationist for review and consideration. The process must be approved by the State Conservationist and applied by the eligible entity on a parcel-by-parcel basis.

Comments: NRCS received three comments on the topic of amendments to cooperative agreements. The respondents recommended that multi-year cooperative agreements be revised to reflect any changes between the final rule and the interim final rule.

Response: Cooperative agreements may be modified subject to the mutual agreement of NRCS and the cooperating entity. The final rule does not require any substantive changes to the cooperative agreements made prior to the final rule.

Comments: NRCS received one comment that recommended the agency provide for the ability to make property substitutions as part of FRPP.

Response: Section 1491.20(a)(5) of the interim final rule already provides for the ability to make parcel substitutions upon mutual agreement of the parties. No changes were made to the final rule.

Comments: NRCS received one comment regarding the manner in which the New Jersey farmland preservation program purchases easements and its interface with FRPP. The respondent expressed concern that FRPP policy requiring the disbursement of the entire payment during the life of the cooperative agreement could prevent New Jersey counties and townships from using FRPP funding. In particular, New Jersey farmland preservation programs often purchase conservation easements with proceeds from general obligation debt, paying in installments over an extended period of time. However, cooperative agreements are for a maximum of 5 years. Further, the respondent requested clarification as to whether NRCS would consider certain debt obligations incurred by the cooperating entity to the benefit of the landowner as constituting a cash contribution rather than an installment payment.

Response: Section 1238I(c) of the 1985 Act describes the financial assistance provided from NRCS to eligible entities as cost-share assistance. Section 1238I(c) also requires that the Federal share for purchasing a conservation easement or other interest in eligible land will not exceed 50 percent of the appraised fair market value. The requirement that an entity must provide at least 25 percent of the purchase price of the acquisition is also a statutory requirement. The situation suggested by the respondent would violate the statutory requirements for the program by requiring NRCS or the landowner to cover the statutorily required cost-share expenses for the entity. NRCS, by statute, may only provide funding for the costs of the easement purchase and not the associated administrative costs such as title insurance, surveys, appraisals, easement monitoring, and other related administrative fees and transaction costs incurred by the entity. Additionally, funds for FRPP appropriated to NRCS by Congress must be expended within 5 years from the fiscal year of obligation. Obligated funds not expended within the 5-year period will no longer be available for payment after the fifth year of obligation. In response to the respondent's comment regarding whether NRCS would allow the entity's obligation to count as a cash contribution from the landowner, this is not permitted for the same statutory reasons mentioned earlier. The statute requires the entity to provide at least 25 percent of the purchase price of the easement or other interest in property. The purchase price is defined as the appraised fair market value of the easement minus the landowner donation. The eligible entity must contribute its statutorily required share to purchase the easement, and debt obligations do not count towards satisfying an eligible entity's required share of the purchase price of an easement.

Comments: NRCS received two comments requesting that the FRPP final rule provide a definition for the phrase, land that furthers a State or local policy consistent with the purposes of the program and gives the State Conservationist, with input from the State Technical Committee and FRPP partner organizations, the ability to decide what lands might further a State or local policy consistent with the program.

Response: Given the potential range and variety of State or local policies that may exist, NRCS does not believe that a definition “that furthers a State or local policy consistent with the purposes of the program” would provide much meaning. Additionally, FRPP purposes are identified by statute. The final rule has not been modified to include this definition. The 2008 Act included an additional category of eligible land which was “land, the protection of which will further a State or local policy consistent with the purposes of the program.” The purpose of FRPP is to protect the agricultural use and related conservation values of eligible land by limiting non-agricultural uses of that land. NRCS will allow State Conservationists to determine which State and local policies are consistent with the stated purposes of FRPP for this category of eligible land.

Comments: NRCS received 11 comments recommending that NRCS accept any State's definition of agriculture as contained in State or local farmland protection legislature, regulation, and ordinance.

Response: The definition of agricultural use in the interim final rule, in substantial part, is the same as the definition of agricultural use used in the 2003 FRPP final rule published at 68 FR 26461, May 16, 2003. FRPP defers to State definitions, but cannot allow uses that decrease the agricultural productivity of the soil such as sod-farming or balled and burlap nursery stock production. Some States include in their definition of agriculture use activities that may decrease the agricultural productivity of the soil. No changes were made to the final rule.

Comments: NRCS received three comments requesting that NRCS change the first sentence in the definition of forest land to “Forest land means a land cover or use category that is at least 10 percent stocked by non-invasive woody species of any size.” The respondents argue that NRCS should redefine the term forest land to be consistent with the definition cited by the USDA Forest Service Forestry Inventory and Analysis Program, and should be limited to nonindustrial private forest land (NIPF) to ensure a focus on family farmers who own forests.

Response: With regard to the respondents' first comment, NRCS adopted the definition of forest land that is used throughout the NRI. NRCS will use this definition of forest land to ensure consistency with other NRCS programs and to ensure the quality and consistency of NRCS data. With regard to the respondents' last comment pertaining to ensuring a “focus on family farmers who own forests,” Farm Bill programs are available to all private landowners that meet the AGI limitation of $1 million per year. Several Farm Bill programs, such as EQIP and the Conservation Stewardship Program, limit forest land eligibility to NIPF. FRPP does not limit land eligibility to NIPF. Limiting eligibility to NIPF could limit the ability of the program to protect contiguous sections of agricultural lands where land conversion pressures are higher.

Comments: NRCS received one comment requesting that the final rule add a definition for forest land of statewide importance that includes priority forested areas or regions of the State that have been identified by the State forester and informed through statewide assessments and strategies pursuant to sections 8001 and 8002 of the 2008 Act.

Response: NRCS agrees with the recommendation of the respondent and has added a definition to the final rule. Forest land of statewide importance means forest land that the State Conservationist, in consultation with the State Technical Committee, identifies as having ecological or economic significance within the State, and may include forested areas or regions of the State that have been identified through statewide assessments and strategies conducted pursuant to State or Federal law.

Comments: NRCS received three comments recommending that NRCS recognize and accept forest plans as specified in section five of the Cooperative Forestry Assistance Act of 1978, 16 U.S.C. 2103c, or other forest plans developed and approved solely by a State forester. The respondents also suggested redefining the term forest management plan to include forest stewardship plans as specified by the Cooperative Forestry Assistance Act, and forest management plans developed under a third-party audited forest certification system, such as the American Tree Farm System.

Response: The definition of forest management plan, as currently written, permits the use of the various plans described by the respondents. No changes were made to the final rule.

Comments: NRCS received two comments requesting a definition for impervious surface.

Response: NRCS agrees with the respondents that a definition for impervious surface as used in the context of FRPP is necessary. The rule has been modified to provide such definition. NRCS would like to clarify that the following activities are not considered impervious surfaces for the purposes of FRPP: Roads and parking lots with soil or gravel surfaces, conservation practices identified in the FOTG and in a conservation plan for the subject farm or ranch, and temporary greenhouses that cover the soil surface for less than 6 months.

Comments: NRCS received 13 comments requesting that NRCS allow organizations that qualify as eligible entities under FRPP to also be eligible as landowners and permitted to apply for cost-share assistance under FRPP. NRCS also received one comment recommending that NRCS provide for an exemption from the definition of landowner such that a nongovernmental organization would have the ability to purchase an FRPP property in order to keep it from being developed while the funds to protect it were being secured.

Response: Lands currently under ownership by an entity whose purpose is to protect agricultural uses and related conservation values, such as a nongovernmental organization, are already protected without funding from FRPP. Therefore, an eligible entity normally cannot qualify as a landowner. However, the July 2, 2009, correction to the interim final rule incorporated additional flexibility into the definition of landowner at § 1491.3 to allow NRCS to facilitate the placement of a conservation easement or other interest in land on properties in limited circumstances where an eligible entity purchases fee title to land temporarily, and then re-conveys those lands to a private landowner. In order for this flexibility to apply, the parcel must be transferred back to private ownership before or at closing on the easement. No further changes were made to the final rule.

Comments: NRCS received one comment requesting the agency define the term parcel because the agency uses the term interchangeably when it refers to farms and ranches.

Response: NRCS agrees with the respondent's comment. The final rule has been modified to define the term parcel. Parcel means a farm or ranch submitted for consideration for funding under this part.

Comments: NRCS received one comment requesting that NRCS define the phrase public access.

Response: The State and local ranking criteria are determined by the State Conservationist, with advice from the State Technical Committee. The State Technical Committee provides information, analysis, and recommendations to the State Conservationist on implementation of conservation programs under Title XII of the 1985 Act. The interim final rule identified that eligible entities may receive additional ranking points under the State ranking criteria if the landowner is willing to allow public access for recreational purposes. NRCS has removed this as a potential ranking criterion. NRCS is cognizant of the potential biohazards that public access presents to an active agricultural operation, and thus, will not use public access as a ranking factor for FRPP assistance.

Comments: NRCS received 32 comments asserting that the agency's position that the contingent right of enforcement is a vested real property right is inconsistent with the intent of Congress.

Response: NRCS addressed the respondents' comments in its July 2, 2009, correction to the interim final rule published at 74 FR 31578. The correction to the interim final rule at § 1491.3 defines the contingent right of enforcement as a vested right set forth in the conservation easement deed. However, as explained below, the contingent right of enforcement is a condition of providing assistance and is not an acquisition subject to the Department of Justice title standards.

Comments: NRCS received two comments critical of NRCS' contingent right of enforcement. The respondents argued that USDA's insistence on maintaining the right to enforce the FRPP conservation easement in perpetuity regardless of State and local future needs is causing many States to forego participation in FRPP. NRCS also received eight comments that applauded the change in language made by the correction to the interim final rule regarding the contingent right of enforcement and the elimination of Department of Justice title standard requirements.

Response: Section 1238I(f)(2) of the 1985 Act explicitly requires that a contingent right of enforcement be included in the terms of each FRPP conservation easement deed. As the correction to the interim final rule explained, as a term of the conservation easement, the contingent right of enforcement is a vested real property right which provides the Chief, on behalf of the United States, the ability to sue to ensure the protection of the conservation values identified in the conservation easement deed. Because the enforcement right is required by statute, NRCS has no authority to remove it. Moreover, the very purpose of the right is to protect the public investment in conservation and to prevent the possibility of future divestment that the first commenter discusses.

Comments: NRCS received one comment that recommended NRCS allow cooperating entities to consider acquisition costs as part of the purchase price.

Response: FRPP cost-share is limited to the cost of purchasing the easement and is defined in the statute in reference to the fair market value of the easement. There is no authority for NRCS to provide cost-share assistance for the other costs associated with conservation easement acquisition.

Comments: NRCS received one comment that requested NRCS inform cooperating entities of the acquisition costs for which they are responsible.

Response: Acquisition costs have always been the responsibility of the cooperating entity and encompass the standard direct acquisition costs and due diligence responsibilities of purchasers of conservation easements. Additional information on typical standards and practices of easement acquisition and management may be found on the Land Trust Alliance Web site at http://www.landtrustalliance.org . No changes were made to the final rule.

Comments: NRCS received one comment requesting clarification about how program funds will be available to eligible entities to partner with NRCS to acquire forest land. The respondent requested clarification as to whether eligible entities must consult with the State Forester to determine what constitutes characteristics of viability, as mentioned in the 2008 Act, and the extent to which forest land may satisfy that determination, as well as to determine the extent and type of buffer necessary and the appropriate measures to maintain adequate buffer capacity.

Response: The focus of the program is the protection of working farms and ranches. The inclusion of forest land as an allowable land use facilitates the enrollment of farms and ranches with a high percentage of forest land. NRCS is interested in assisting landowners in managing forest lands, and is relying on the forest management plan to guide landowners. While the State Forester is a valuable source of information and guidance, the FRPP rule does not require an eligible entity to consult with the State Forester to determine the characteristics of viability. The buffers mentioned in the 2008 Act and the final rule are buffers to protect the farm from development, not necessarily to function as a water quality buffer.

Comments: NRCS received three comments that FRPP should be redesigned to be a grant program similar to block grants where Federal agencies focus on the results and facilitate local management of the program.

Response: The statute describes the program as a cost-share program. The original House legislation proposed a grant program; however, Congress did not adopt that provision of the legislation in the Conference Report. In the Conference Report, Congress designed FRPP as a program to provide financial assistance through a cooperative agreement to facilitate the purchase of conservation easements by eligible entities. As defined in the Federal Grants and Cooperative Agreement Act, 31 U.S.C. 6304 et seq., cooperative agreements are different from grants because, among other things, there is a higher level of Federal involvement. This is consistent with the FRPP statutory requirements which require significant involvement of the Secretary, including setting cooperative agreement requirements, certification, conservation planning, and enforcement.

Comments: NRCS received two comments asserting that the requirement that eligible entities have pending offers to purchase conservation easements or other interests in eligible land before applying for FRPP funds is arbitrary and burdensome.

Response: Section 1238H of the 1985 Act defines eligible land as “land on a farm or ranch that is subject to a pending offer for purchase from an eligible entity.” Therefore, the pending offer is required to meet land eligibility criteria. Additionally, securing a pending offer ensures that the landowner is serious about selling an easement. No changes were made to the final rule.

Comments: NRCS received one request that the term facilitate be added to the purpose of the program.

Response: NRCS agrees with the respondent. However, the term facilitate was added to the language of § 1491.4(a) of the interim final rule; therefore, no change is required to address this comment. NRCS believes that the language of § 1491.4(a) affirms NRCS has shifted the focus of the program from purchasing conservation easements to facilitating the purchase of conservation easements by eligible entities. Also, adding the term facilitate identifies that NRCS will promote farm and ranch land protection, not that it will decrease the accountability required of cooperating entities.

Comments: NRCS received 17 comments expressing concern about removal of the specific reference to topsoil protection as a primary program purpose.

Response: Section 2401 of the 2008 Act revised the program purpose of FRPP so that the language no longer includes protection of topsoil. The purpose of the 2002 Act was “protecting agricultural use and related conservation uses.” NRCS is not authorized to change the purpose of the program. Even so, the protection of topsoil remains one of FRPP purposes as is made clear by the criteria for eligible land—“prime, unique, or productive soil.”

Comments: NRCS received one comment suggesting consideration of optional term easements consistent with State program requirements, where available.

Response: Section 1491.4(b) of the interim final rule already provided for the maximum term allowed by State law. Optional term easements are often for less than the maximum term allowed by State law, and NRCS believes that the FRPP Federal investment is best served by permanent or the longest-term easement that is available. Therefore, NRCS did not adopt the recommendation of the respondent.

Comments: NRCS received one comment recommending that NRCS allow entities to be qualified as eligible without being associated with a parcel.

Response: Entities can be considered qualified to apply for FRPP financial assistance without having any parcels being considered for financial assistance. Because the entity's eligibility may vary over time as funding and staff wax and wane, an entity will have to be qualified at least annually unless they are an entity associated with a cooperative agreement with a term of 3 or 5 years.

Comments: NRCS received 10 comments recommending that the final rule provide a more qualitative standard for eligible land that is consistent with existing State and local program requirements. The respondents argued that land eligibility tied to a percentage of the farm in certain soil types is inappropriate.

Response: Congress established the criteria for eligible land in the 2008 Act. Section 1491.4(c) further clarifies program eligibility criteria. A criterion for land eligibility in the 2008 Act is prime, unique, and other productive soils. NRCS has national standards for prime, unique, and important farmland soil that have been developed in cooperation with Land Grant Universities in each State. The national target for prime, unique, and important farmland soil in FRPP, set by the White House Office of Management and Budget, is 65 percent of the total acres enrolled in FRPP. No changes were made to the final rule.

Comments: NRCS received one comment asserting that there is no clear rationale as to why an easement cannot contain more than two-thirds forest land. The respondent urges flexibility in this figure to allow for greater acreages if the forest meets the viability test as identified in the 2008 Act, and that there is no statutory restriction on amount of the forest land that can be enrolled.

Response: The limitation of two-thirds forest land is to avoid conflicts with the Forest Legacy Program as requested by the USDA Forest Service. No changes were made to the final rule.

Comments: NRCS received 75 comments asserting that the requirement for forest management plans is burdensome. The respondents requested that NRCS eliminate this requirement, or at least make the threshold 50 acres. NRCS also received one comment stating that the forest management plan requirement was perfect.

Response: The 2008 Act requires that forest land enrolled in FRPP contributes to the economic viability of the farm or serves as a buffer from development. A management plan is a minimal requirement to prove land eligibility and will be the primary means by which economic viability will be determined. In response to comments on the interim final rule, the final rule increased the amount of acreage enrolled in FRPP requiring a forest management plan to 40 contiguous acres, or 20 percent of the easement area from 10 contiguous acres or 10 percent of the easement area. Forest land that contributes to the economic viability of the farm may include parcels of forest with viability for timber harvest, hunting, or other recreational uses for which a fee may be charged. Section 1491.4(g)(2) of the final rule has been modified by adding “or serves as a buffer to protect an agricultural operation from development” to allow the Chief to identify other means for which the contribution of FRPP to the economic viability can be demonstrated.

Comments: NRCS received eight comments asserting that NRCS should not require hazardous materials records search and site reviews.

Response: NRCS does not require the eligible entity to do hazardous materials records search. However, the hazardous materials records search, site review, and landowner interview are basic due diligence requirements that are recommended for any purchaser of real property. NRCS may conduct its own hazardous materials records search, site review, and landowner interview to ensure public funds are not being used to acquire an interest in contaminated sites.

Comments: NRCS received one comment that the term suitability may need to be replaced with unsuitable for this sentence to make sense.

Response: NRCS agrees with the respondent. Section 1491.4(f)(8) has been modified to reflect the commenter's suggestion.

Comments: NRCS received one comment supporting the provision in § 1491.4(f)(9) that eligible land “may be land on which gas, oil, earth, or other mineral rights exploration has been leased or is owned by someone other than the applicant and may be offered for participation in the program.”

Response: NRCS appreciates the respondent's support for the provision. NRCS will assess the potential impact that the third party rights, such as severed or leased mineral rights, may have upon achieving the program purposes. NRCS reserves the right to deny funding for any application where existing encumbrances will have an adverse impact upon the ability to protect the agricultural viability of the land, and such encumbrances are not able to be resolved during the title clearance process.

Comments: NRCS received one comment that requested NRCS not allow large entities to dictate the terms of the program.

Response: NRCS uses a ranking process as described in § 1491.6 of the final rule to ensure all cooperating entities are treated equally. The process ranks the parcels to be selected for funding, not the entity. The entity must meet the eligibility criteria as described in § 1491. NRCS will not abdicate its responsibility to ensure that FRPP is administered in a manner that protects Federal investment in farmland protection.

Comments: NRCS received one comment recommending that NRCS delete the suggested State criteria involving succession plans.

Response: The State criteria are suggestions only. They are not requirements. USDA encourages succession planning for farmers and ranchers; therefore, no changes were made to the final rule.

Comments: NRCS received one comment recommending deletion of the suggested State criteria involving access for recreation.

Response: As discussed above, NRCS removed the reference to priority for allowing public access to acknowledge the biohazard concerns of agricultural operations.

Comments: NRCS received 80 comments asserting that delineating specific national criteria in the rule that are not called for by statute may conflict with established State and local criteria. The respondents argue that certified entities should be allowed to use their own ranking and proposal selection process, and that NRCS should identify broad categories, but not specific criteria, in order to facilitate comparison between applications from certified and non-certified entities.

Response: NRCS believes that it is the ranking aspect of FRPP that provides the greatest assurance that FRPP purposes are being met, and national criteria are vital to the ranking process. Certification alone does not ensure that the parcels selected will best meet FRPP purposes. The national ranking factors in the 2003 FRPP final rule only provided weight to the cooperating entities with the longest tenure and the largest budgets and staff. No weight was given to the quality of the parcels. The national ranking factors in the 2009 interim final rule removed the bias in favor of established cooperating entities with large budgets and staff, and placed greater emphasis on the quality of the parcels. Parcels submitted by all eligible entities are treated equally once the eligible entities have met the eligibility criteria. In every State except two, parcels are submitted by certified and non-certified eligible entities. There must be a selection process that is common to both certified and non-certified entities. NRCS State offices may score and weigh the national ranking factors to reflect the State's needs and add ranking factors that reflect State or local priorities. NRCS accepts applications on a continuous basis. The announcement of the application ranking date is changed from 60 days to 30 days before ranking to allow State offices to select eligible parcels and obligate funds faster. The reduced time will also allow States to announce multiple ranking dates.

Comments: NRCS received one comment that asserted that if NRCS finds that a grantor has violated the easement, then NRCS should pursue cost recovery directly from the grantor without obligation from the grantee. The respondent believes that NRCS should only pursue legal action against the grantee if NRCS feels the grantee is violating its obligations.

Response: Section 1491.30(c) of the interim final rule states that the landowner will be liable for any costs. NRCS has identified that it will only seek to enforce an easement if the grantee has failed to do so; therefore, no changes were made to the final rule.

Comments: NRCS received one request that NRCS use eligible entity in place of cooperating entity.

Response: NRCS agrees with the respondent. The change is required for clarity and has been made in the final rule.

Comments: NRCS received one request that NRCS use eligible entity in place of grantee.

Response: NRCS agrees with the respondent. The change is required for clarity and has been made in this final rule where applicable. However, there are certain situations where grantee is the appropriate term, and NRCS retained its use in those circumstances.

Comments: NRCS received one request that the agency not use eligible entity to address an entity before it is determined to be eligible.

Response: NRCS agrees with the respondent. The change is required for clarity and has been made in the final rule.

For the reasons stated above, the CCC revises part 1491 of Title 7 of the CFR to read as follows:

The Animal and Plant Health Inspection Service (APHIS) regulations in title 9 of the Code of Federal Regulations (CFR), parts 93, 94, and 95 (referred to below as the regulations), govern the importation into the United States of specified animals and animal products and byproducts to prevent the introduction of various animal diseases, including exotic Newcastle disease (END) and highly pathogenic avian influenza subtype H5N1.

END is a contagious disease of birds and poultry caused by a paramyxovirus. END is one of most infectious diseases of poultry in the world. A death rate of almost 100 percent can occur in unvaccinated poultry flocks. END can also infect and cause death even in vaccinated birds and poultry.

Avian influenza is caused by a orthomyxovirus, the same family that includes viruses that cause human influenza. Worldwide, there are many strains of avian influenza (AI) virus that can cause varying amounts of clinical illness in birds and poultry. AI viruses can infect chickens, turkeys, pheasants, quail, ducks, geese and guinea fowl, as well as a wide variety of other birds. Migratory waterfowl have proved to be a natural reservoir for the less virulent strains of the disease known as low-pathogenicity avian influenza.

Classification of AI viruses is based on both biological and molecular characteristics of the virus. AI viruses are identified by a combination of two groups of surface proteins; the hemagglutinin or H proteins and the neuraminidase or N proteins. AI viruses also are characterized as low pathogenic (LP) or highly pathogenic (HP) by their ability to produce disease or by molecular characteristics. The ability to cause clinical signs may depend on the species of bird infected and may change over time, becoming more or less pathogenic. Highly pathogenic avian influenza (HPAI) is an extremely infectious and potentially fatal form of the disease in birds and poultry that, once established, can spread rapidly from flock to flock.

In general, AI viruses of H5 and H7 subtypes are considered to be of greatest concern. The H5N1 subtype of HPAI (referred to below as HPAI subtype H5N1) that has caused outbreaks in birds and poultry in Asia, Africa, Europe, and other foreign regions has never been found in the United States. Other forms of HPAI have been detected in 1924, 1983 and 2004 in domestic poultry in this country. The 2004 outbreak was confined to a single flock and rapidly eradicated. There were no human illnesses reported in connection with these outbreaks; however, HPAI subtype H5N1 has caused human illness and death in other countries where people have handled or been in close contact with infected birds or poultry.

The regulations in part 93, subparts A and B, require that most birds and poultry imported into the United States be accompanied by a permit and health certificate and be quarantined upon arrival for a minimum of 30 days to ensure the birds' or poultry's freedom from END, HPAI subtype H5N1, and other communicable diseases, including other subtypes of HPAI. Pet birds of U.S. origin that are returning to the United States and that have not been in any region where HPAI subtype H5N1 exists have been exempt from quarantine if they have been outside the country for less than 60 days. Such pet birds have been allowed to be maintained in confinement at the owner's residence, rather than in a USDA quarantine facility, if they have been outside the country for 60 days or more. Any U.S. origin pet birds or performing or theatrical birds or poultry that are returning to the United States and that have been in any region where HPAI subtype H5N1 exists have been required to undergo quarantine in a USDA facility, and may only be imported through certain ports (Los Angeles, CA, Miami, FL, or New York, NY). The regulations have also prohibited the importation of birds that have been vaccinated against Newcastle virus. While the regulations do not explicitly prohibit the importation of live birds or poultry from countries where END or HPAI is considered to exist, APHIS has been effectively prohibiting such imports by denying import permits under § 93.103(a)(2)(i) and § 93.204(a)(2), which allow a permit to be denied based on communicable disease conditions in the area or region of origin.

This interim rule makes several changes to the requirements for importing live birds and poultry to improve protection against the introduction of all subtypes of HPAI.

First, we are prohibiting the entry of live birds or poultry that have been vaccinated for any H5 or H7 subtype of avian influenza. The prohibition will also apply to hatching eggs  1 that were laid by birds or poultry vaccinated for the H5 or H7 subtypes of avian influenza. The current prohibition in the regulations applies only to birds (including hatching eggs) that have been vaccinated for Newcastle disease.

The changes we are making are based on our emergency preparedness plans for HPAI and the experience we gained following the 2004 outbreak of H5N2 in Gonzales County, TX. The preparedness plan is based on the best available science and developed in consultation with academic and industry experts. We have adopted a policy that reserves the use of H5 or H7 AI vaccines for control of HPAI outbreaks with the intent to implement vaccination on a strategic basis and under the supervision or control of USDA as part of an official USDA animal disease control program.

The regulations in § 93.106 and § 93.209 require that birds and poultry be quarantined in an approved facility for at least 30 days after importation into the United States and tested during quarantine for communicable diseases of poultry. Such testing now includes testing for all subtypes of avian influenza. Vaccination for H5 or H7 strains of avian influenza could mask the presence of infection in imported birds, and vaccinated birds would have antibodies to H5 or H7 that would be detected during quarantine or routine surveillance, resulting in the birds being handled as if they were infected.

Therefore, we are adding two new requirements addressing vaccination to Subpart A—Birds and Subpart B—Poultry in part 93. There is currently a statement in paragraph (b)(4) of § 93.104, “Certificate for pet birds, commercial birds, zoological birds, and research birds,” that requires that the certificate accompanying such birds state that “the birds have not been vaccinated with Newcastle disease vaccine.” We are removing the requirement that birds are not vaccinated against Newcastle virus because it is standard practice in the United States. We are changing that required statement to “the birds have not been vaccinated with a vaccine for any H5 or H7 subtype of avian influenza.” We are also changing the similar statement contained in the parallel certificate requirement for ratites in § 93.104(c)(5) to read “the ratites have not been vaccinated with a vaccine for any H5 or H7 subtype of avian influenza.” We are also adding a statement to § 93.205, “Certificate for poultry,” to read “The certificate shall also state that the poultry have not been vaccinated with a vaccine for any H5 or H7 subtype of avian influenza.” A complementary sentence is added to § 93.205(b) addressing poultry hatching eggs, requiring that the certificate accompanying them to state that “the hatching eggs are from poultry that have not been vaccinated with a vaccine for any H5 or H7 subtype of avian influenza.” These new certificate statement requirements are expected to add a recordkeeping burden of about 30 minutes for each of the approximately 718 certificates obtained each year, or a total burden of about 358 hours. These changes will effectively prohibit the importation of any live birds or live poultry that have been vaccinated for any H5 or H7 subtype of avian influenza, including hatching eggs from such birds.

Second, we are prohibiting the importation into the United States of live birds or poultry that transit regions where HPAI of any subtype is considered to exist. Live birds and poultry cannot be kept in completely sealed containers or otherwise protected from contamination during shipment to the United States. The World Organization for Animal Health (the OIE) has found that secondary spread of avian influenza viruses is mainly by mechanical transfer of infective faeces, in which virus may be present at high concentrations and may survive for considerable periods and that the virus may be spread by birds or other animals that are not themselves susceptible to infection that become contaminated through contact with infected birds in transit. 2 Water or feed present during transit may also become contaminated. In some cases caretakers, farm owners and staff, and trucks and drivers moving birds or delivering food have been implicated in the spread of virus. Consequently, there are significant risks of live birds or poultry contracting HPAI if allowed to move through regions where HPAI is considered to exist en route to the United States.

We are making this change in § 93.104, “Certificate for pet birds, commercial birds, zoological birds, and research birds,” which describes the certificate requirements for live poultry, live birds, and hatching eggs imported into the United States, and in § 93.205, “Certificate for poultry,” which describes the certificate requirements for imported live poultry and hatching eggs. We are adding language to paragraphs (b)(6) and (c)(7) of § 93.104, and to paragraphs (a) and (b) of § 93.205 to require that the certificate must state that the live poultry or birds it applies to have not been moved through a region identified in accordance with § 94.6(a) as a region where any form of highly pathogenic avian influenza exists.

Third, we are redescribing the applicability of the requirements in § 93.101(c)(3) and (f)(3) for importing pet and theatrical birds. These paragraphs currently require importation only through certain ports and quarantine for any U.S. origin pet birds or performing or theatrical birds or poultry that are returning to the United States and that have been in any region where HPAI subtype H5N1 exists. This requirement will now apply to such birds that have been in any region where HPAI of any subtype exists. This change is consistent with the other changes in this rule that apply requirements equally whether HPAI subtype H5N1 or other subtypes are involved.

Prior to this interim rule, the regulations in part 94, § 94.6, restricted the importation of carcasses, parts of products of carcasses, and eggs (other than hatching eggs) of poultry, game birds, and other birds, from regions where END or HPAI subtype H5N1 are considered to exist.

Paragraph (a)(1) of § 94.6 stated that END is considered to exist in all regions of the world except those listed in paragraph (a)(2) of that section. Paragraph (a)(2) listed regions considered to be free of END, based on evaluations by APHIS.

Paragraph (b) of § 94.6 contained requirements for importations from regions where END is considered to exist. Paragraph (b) provided that (except for game birds, which are eligible for importation if eviscerated, with heads and feet removed) carcasses and parts or products of carcasses may be imported only for consignment to an approved establishment, or if they are packed in hermetically sealed containers and cooked by a commercial method after such packing such that they are shelf stable without refrigeration, or if they have been thoroughly cooked. Paragraph (b) also contained provisions for the importation of poultry carcasses or parts or products of carcasses that originate in a region free of END and are then processed in a region where END is considered to exist. Additionally, paragraph (b) contained provisions for the importation under permit of carcasses or parts or products of carcasses of poultry, game birds, or other birds that do not otherwise meet the requirements of paragraph (b), when the Administrator determines that such importation will not constitute a risk of introducing or disseminating END into the United States.

Paragraph (c) of 94.6 contained requirements for importing eggs (other than hatching eggs) from poultry, game birds, or other birds if the birds or poultry were raised in any region where END is considered to exist, if the eggs are imported from any region where END is considered to exist, or if the eggs are moved into or through any region where END is considered to exist at any time before importation or during shipment to the United States. Paragraph (c) provided that the eggs may be imported with a certificate that contains information documenting that the eggs do not present a risk of introducing END; or the eggs may be imported into an approved establishment for breaking and pasteurization; or the eggs may be imported into an approved establishment for scientific, educational, or research purposes. Additionally, paragraph (c) contained provisions for the importation under permit of eggs (other than hatching eggs) that do not otherwise meet the requirements of paragraph (c), when the Administrator determines that such importation will not constitute a risk of introducing END into the United States.

Paragraph (d) of § 94.6 listed regions where HPAI subtype H5N1 is considered to exist. Paragraph (e) of § 94.6 contained requirements for importing unprocessed carcasses and parts or products of unprocessed carcasses of poultry, game birds, or other birds from regions where HPAI subtype H5N1 is considered to exist. Paragraph (e) provided that such unprocessed products could only be imported under permit for scientific, educational, or research purposes and if the Administrator had determined that such importation could be made under conditions that will prevent the introduction of HPAI subtype H5N1. Such conditions are specified in the permit.

Although prior to this interim rule, § 94.6(b) applied only to carcasses and parts or products of carcasses of poultry, game birds, or other birds from regions where END is considered to exist, similar restrictions have been in general use among nations engaged in international trade of poultry products to prevent the introduction of both END and HPAI. Moreover, to date, all foreign regions where HPAI is considered to exist are also regions where END is considered to exist, so the restrictions have been applied de facto with regard to both diseases.

However, APHIS expects that, over time, additional regions will be determined to be free from END, and some regions where END was considered to exist may successfully eradicate the disease and then be determined free from END. In such cases, import restrictions based on the presence of END would no longer apply to the regions, and, thus, would no longer protect against HPAI if it exists in the region. There is also a recent apparent increase in HPAI outbreaks worldwide and HPAI may become established in a region where END has never existed, resulting in an increasing threat of introducing HPAI into the United States through imported poultry or poultry products. Although we could take immediate action as outbreaks occur to issue Federal emergency action orders to prohibit the importation of birds and poultry and bird and poultry carcasses, or parts or products of carcasses, from such regions under the Animal Health Protection Act (7 U.S.C. 8301 et seq. ), we have determined that we need to establish regulatory safeguards that will be triggered by the discovery of an outbreak of any form of HPAI in commercial birds or poultry in a region, irrespective of whether END exists in the region.

This interim rule explicitly applies the END provisions in current § 94.6(b)(3), (b)(4), and (b)(5) that apply to bird and poultry carcasses, and parts or products of carcasses, from regions where END exists to regions where any subtype of HPAI is considered to exist. Paragraphs (b)(3) and (b)(4) of § 94.6 require the products to be cooked in a manner that destroys the HPAI virus. Paragraph (b)(5) addresses products that originate in a region free of END and are then processed in a region not considered free of the disease. It allows products from free regions to be processed in regions not considered free under conditions designed to prevent contamination of the products.

This interim rule does not apply the END provisions in § 94.6(b)(1) regarding game birds to HPAI regions. This paragraph states that carcasses of game birds may be imported from an END region if eviscerated, with heads and feet removed. We do not believe we have enough information at this time to conclude that this END-based restriction would also control HPAI. As discussed later in this document, we are requesting public comment on this issue. To make it clear that this interim rule paragraph does not allow importation of carcasses of game birds from regions where HPAI exists, it adds the following sentence to § 94.6(b)(1): “Carcasses of game birds may not be imported from regions where HPAI is considered to exist.”

In connection with the changes related to HPAI, we are establishing a list of regions where HPAI of any subtype exists. This list is discussed in more detail below under the heading “The Lists of Regions.” Note that we are creating a single list of regions where any subtype of HPAI is considered to exist because we are applying the same conditions to importations from regions where HPAI subtype is considered to exist, regardless of the subtype of HPAI.

In addition to applying certain requirements in § 94.6(b), “Carcasses, and parts or products of carcasses, from regions where END is considered to exist,” to HPAI as well as END, we are making one substantive change, concerning cooking, to these requirements.

Prior to this interim rule, paragraph (b)(4) of § 94.6 required that cooked carcasses, parts, or products of poultry or other birds from END regions “have a thoroughly cooked appearance throughout.” In adapting this requirement to apply to both END and HPAI, we are changing the requirement to read that the articles must be “cooked to reach a minimum internal temperature throughout of 74 °C (165 °F).”

To protect against both END and HPAI, cooking must be sufficient to inactivate the viruses in poultry meat that cause these diseases. The former recommendation by the OIE was for cooking that achieves an internal temperature of 70 °C (158 °F) for 5 seconds, but the 2007 Terrestrial Animal Health Code indicates that a standard of 73.9 °C (165 °F) for 0.51 seconds is equally or more effective. 3 Based on this OIE recommendation and the research supporting it, APHIS is applying this revised cooking standard with regard to both HPAI and END. We are rounding the temperature up from 73.9 °C to 74 °C, to make it more practical for commercial treatment situations, and are eliminating the “for 0.51 seconds” part of the standard because experience monitoring such cooking has shown that if the articles reach any given internal temperature, the temperature will endure for more than half a second. The cooking temperature of 74 °C (165 °F) is based on scientific data regarding the temperature required to inactivate both types of viruses, but also includes a small margin of error with regard to END to allow for the wide variety of commercial cooking practices around the world. Although studies indicate that END can be inactivated at a slightly lower temperature than HPAI, approximately 72 °C (162 °F), having a single standard will make the regulations easier to apply and enforce and will ensure that products from regions where either or both diseases exist do not present a risk of introducing either disease. Setting the same temperature requirement with regard to both diseases also reduces the possibility for processing error that could occur if cooking operations needed to frequently switch between, for instance, the former 70 °C (158 °F) OIE standard still used by some countries, a 72 °C (162 °F) requirement for END, and a 74 °C (165 °F) requirement for HPAI.

The cooking temperatures required to inactivate these viruses are a matter of both regulatory and commercial concern. If the standard is set too low, there is a risk that significant amounts of infectious material may survive cooking. If the standard is set unnecessarily high, it increases the cost for producers and may degrade some products. We do not expect the new standard will significantly increase the cost of required cooking. Various scientific studies  4 are underway to further examine the optimal cooking standards to inactivate END or HPAI viruses in products, and APHIS may revisit this standard if new information indicates a need to do so. Therefore, we particularly invite public comment on this issue.

Prior to this interim rule, § 94.6(a)(1) and (a)(2) identified regions where END is considered to exist and regions that are considered to be free of END, respectively.

We are consolidating paragraphs (a)(1) and (a)(2) into a single paragraph (a)(1). We are also taking this opportunity to add to § 94.6(a)(1) a sentence explaining that a region on this list that is removed due to an outbreak of END may be returned to the list in accordance with the procedures for reestablishment of a region's disease-free status in § 92.4. This information does not add any new requirements regarding END; it merely refers to another section of the regulations that is relevant to determining a region's disease status.

We are also adding a new paragraph (a)(2) that establishes a list of regions in which HPAI of any subtype is considered to exist. This list will include all regions where we consider HPAI subtype H5N1 to exist: Afghanistan, Albania, Azerbaijan, Bangladesh, Benin, Burkina Faso, Cambodia, Cameroon, China, Djibouti, Egypt, Ghana, Hong Kong, India, Indonesia, Iran, Iraq, Israel, Ivory Coast (Côte d'Ivoire), Japan, Jordan, Kazakhstan, Kuwait, Laos, Malaysia, Myanmar, Nepal, Niger, Nigeria, Pakistan, Palestinian Autonomous Territories, Romania, Russia, Saudi Arabia, South Korea, Sudan, Thailand, Togo, Turkey, Ukraine, and Vietnam. We are removing the list of regions where HPAI subtype H5N1 is considered to exist in § 94.6(d) because it is no longer needed. These changes consolidate into § 94.6(a) all the listings of the disease status of regions for END and HPAI, making § 94.6 easier to follow.

Unlike paragraph (a)(1), which maintains a list of regions in the CFR, new paragraph (a)(2) for HPAI of any subtype will refer to a list that APHIS will maintain on its Web site. Copies of the list will also be available via postal mail, fax, or e-mail upon request to APHIS, Veterinary Services, National Center for Import and Export. Paragraph (a)(2)(ii) describes the procedures for adding regions to and removing regions from the list. The public will have the opportunity to comment on any changes to the list.

The purpose of maintaining the list on the Web site is to maintain the most accurate, up-to-date list possible in a location where affected parties can easily view recent changes. The Web site list should be particularly useful when a new region is added to the list, which occurs immediately after APHIS receives reliable reports of a new outbreak. Changes to lists maintained in the CFR are typically not published until days or even weeks after APHIS determines a region should be added to the list. As discussed in more detail below under the heading “Related Issues on Which APHIS is Seeking Comment,” we particularly invite commenters to address whether this approach should also be used not only for the new HPAI list of regions, but also with regard to the END list of regions in § 94.6(a)(1).

A region will be added to the list of regions where HPAI exists when APHIS receives reports of outbreaks of the disease in commercial birds or poultry in the region from veterinary officials of the national government of the region and/or the World Organization for Animal Health (the OIE). The Administrator of APHIS may also add a region to the list based on outbreak reports he or she receives from other sources the Administrator determines to be reliable; e.g., reports from APHIS inspectors based in foreign countries. This last means of adding regions to the list allows APHIS to take prompt action as soon as it reliably learns of an outbreak, even before reports have been received and referred by the exporting country's animal health agency or the OIE. This is the same basis APHIS has used to remove regions from the list of regions considered free of END, and to add regions to the list of regions where HPAI subtype H5N1 is considered to exist. The principle is the same for all such lists—the lists are changed as soon as APHIS has reliable reports of an outbreak of the relevant disease in the region.

A region will be removed from the list of regions where HPAI is considered to exist only after APHIS completes an evaluation and makes it available for public comment through a notice published in the Federal Register . Following the close of the comment period, we will publish another notice responding to comments and announcing APHIS' decision.

In assessing the region's disease status, APHIS takes into consideration our regulations in Part 92, “Importation of Animals and Animal Products: Procedures For Requesting Recognition of Regions,” as well as the standards of the OIE for disease-free status and all relevant information obtained from veterinary authorities in the region and through public comments. Additional information about the information APHIS will review can be found on the APHIS National Center for Import and Export Web site at http://www.aphis.usda.gov/import_export/animals/animal_disease_status.shtml .

Prior to this interim rule, the regulations in § 95.30 provided that products and byproducts of poultry, game birds, or other birds from regions where HPAI subtype H5N1 is considered to exist could only be imported under permit and in accordance with conditions specified in the permit to prevent the introduction of HPAI subtype H5N1 into the United States. This section covers feathers, birds' nests, bird trophies, and other products and byproducts not suitable for human consumption, whereas the regulations in part 94 generally cover meat and other products suitable for human consumption. This interim rule applies the regulatory requirements in this section to all subtypes of HPAI.

Paragraph (b)(5) of § 94.6 concerns processing of products in foreign regions. A footnote to that paragraph (footnote 5 prior to this interim rule, and renumbered in this interim rule as footnote 7) states that, as a condition of entry into the United States, products must be prepared only in what the footnote calls “approved establishments.” Prior to this interim rule, the term “approved establishments” in this footnote referred to establishments approved under the Poultry Products Inspection Act (PPIA, 21 U.S.C. 451 et seq. ) to prepare food products in accordance with regulations of USDA's Food Safety and Inspection Service (FSIS). To avoid confusion with other uses of the term “approved establishment” in the regulations, we are changing the term that refers to establishments operating under the PPIA to “processing establishment.” We believe this change will prevent possible confusion due to the use of the term “approved establishment” in two other paragraphs in § 94.6. In a footnote to § 94.6(b)(2) (footnote 4 prior to this interim rule, and renumbered in this interim rule as footnote 5), the term refers to museums, educational institutions, or other establishments that are approved to receive bird or poultry carcasses for educational purposes. In § 94.6(c)(2), the term refers to establishments that are approved by FSIS for breaking and pasteurization of eggs in a manner that will prevent the spread of disease.

We are consolidating into one paragraph the requirements for carcasses and products with regard to both END and HPAI. Paragraph (b) of § 94.6 is therefore retitled “Carcasses, and parts or products of carcasses, including meat, from regions where END or HPAI is considered to exist.” As part of this consolidation we are moving the requirements addressing products from a region where HPAI subtype H5N1 is considered to exist from § 94.6(e) into § 94.6(b)(2), which applies to all subtypes of HPAI. Those requirements state that articles from such regions may only be consigned to certain types of establishments approved by the Administrator, must be accompanied by a permit, and must be moved and handled as specified on the permit. We are also removing § 94.6(e), because the requirements of this paragraph have been incorporated into § 94.6(b)(2).

We are adding the word “meat” in several places in § 94.6 where the text has said only “carcasses and parts or products of carcasses.” The phrase “carcasses and parts or products of carcasses” includes meat in its meaning, but adding the word makes that clearer. We are also adding text and footnotes to refer readers to part 95 for regulations covering products not intended for human consumption.

Finally, in conjunction with the changes to § 94.6 discussed above, we are making several changes to parts 93, 94, and 95 that refer to § 94.6. All but three of these changes simply correct references to § 94.6(d)—the former location of the list of regions in which HPAI subtype H5N1 is considered to exist—to instead read “§ 94.6(a)(2).”

One of the remaining changes is to § 93.205, which contains certificate requirements for live poultry and hatching eggs. We are making nonsubstantive changes to § 93.205 to simplify it slightly and divide it into three subordinate paragraphs for ease in reading.

The remaining two changes address requirements in §§ 93.209(b) and 94.26 that have applied to regions where END is considered to exist. These requirements must now apply to regions where either END or HPAI exist. In § 93.209(b), the relevant requirement is that poultry hatching eggs must be quarantined upon arrival in the United States for at least 30 days, unless they are from a region considered free of END and HPAI. Section 94.26 now requires an additional certification statement and other requirements to import live poultry and other products from certain regions that supplement their meat supply from, or have a common land border with, regions considered to have either END or HPAI.

There are several additional issues related to HPAI and END for which we are seeking public comment. This interim rule does not make any of the possible changes discussed below, because there are no immediate risks associated with them that would justify immediate action. However, we believe the following changes would improve the effectiveness of our programs to prevent the introduction of HPAI, END, and other poultry diseases.

As discussed above, the new list of regions considered to have HPAI of any subtype will be maintained on the APHIS Web site, not in the CFR. We are also considering listing the regions where END is considered to exist on the Web rather than in the CFR, and we are soliciting public comment on this issue. This change would help us maintain the most accurate, up-to-date list possible in a location where affected parties can easily view recent changes. We would continue to provide an opportunity for public comment on changes to the list. As now, when APHIS determines that a disease is present in a region that presents a potential threat to animal health in the United States, we would take immediate action to restrict imports from that region. However, we would not follow that action with an interim rule in the Federal Register (which is necessary to change text in the CFR, where the lists are currently located). Instead, we would list the region on the APHIS Web site, and announce the listing through a notice, rather than a rule, in the Federal Register , with an opportunity for public comment. As explained previously with respect to the process for adding or removing a region from the Web list for HPAI, we would consider END to exist in a region when APHIS receives reports of outbreaks of the disease in commercial birds or poultry in the region from veterinary officials of the national government of the region and/or the World Organization for Animal Health (the OIE), or receives reports of an outbreak from another source that the Administrator determines to be reliable; e.g., APHIS inspectors based in foreign countries.

We would add a region to the list of those considered to be free of END only after completing an evaluation and making it available for public comment. We would do this through a notice in the Federal Register . Following the close of the comment period, we would publish another notice responding to comments and announcing APHIS' decision.

In assessing the region's disease status, APHIS would take into consideration the same information it does now—our region recognition standards in part 92, the standards of the OIE for disease-free status, and all relevant information obtained from veterinary authorities in the region and through public comments. Additional information about the factors APHIS reviews to determine a region's END and HPAI statuses may be found on the APHIS National Center for Import and Export Web site at http://www.aphis.usda.gov/import_export/animals/animal_disease_status.shtml .

After evaluating public comments received on this issue in response to this interim rule, we may publish a final rule to establish a Web site list of regions' disease status for END. That final rule would also remove the END list from § 94.6(a)(1). We would at that time also name the regions included in the END Web site list, including any regions that have been added based on reports of END outbreaks since the last time the list was amended in the CFR.

We also seek public comment on whether and how to change paragraph (c) of § 94.6 to address risks associated with importing table eggs from regions where HPAI is considered to exist. Paragraph 94.6(c) addresses importation of eggs (other than hatching eggs, which are regulated by part 93) from regions where END is considered to exist. It currently authorizes four ways such eggs may be imported, one of which is with a certificate stating that the flocks meet certain disease monitoring and testing requirements. These requirements involve placing sentinel birds in the flock and later testing them for END, or alternatively testing the carcasses of any poultry that die in the flock and also testing at least 10 percent of live birds. We are considering adding HPAI to the coverage of this paragraph, and requiring the appropriate tests and flock surveillance for HPAI where such tests and surveillance are already required for END.

This document does not make any changes to § 94.6(c) related to HPAI because APHIS is still considering issues concerning the importation of table eggs from regions where HPAI is considered to exist, and we are soliciting public comment on the issues. In particular, we seek comments on whether a targeted testing program for HPAI in egg flocks in foreign regions is advisable, and how it could be designed to provide a statistically valid testing regimen. Any comments we receive on this subject will be considered if and when APHIS develops a rule on the subject. Those who wish to comment on this issue should also review a final rule APHIS published in the Federal Register on April 22, 2009 (“Importation of Table Eggs from Regions Where Exotic Newcastle Disease Exists,” Docket No. APHIS-2007-0014; 74 FR 18285-18288). That document changed § 94.6(c) to create a protocol for targeted END testing of a statistically valid sample of dead, dying, and cull birds. We believe it would also be possible to create such a targeted testing program for HPAI, although the sample sizes, type of tests, and other technical details would vary.

We also seek public comment on whether and how the requirements in § 94.6(b)(1) for importing carcasses of game birds from regions where END exists should be changed. This paragraph primarily affects hunters returning to the United States with game birds they have shot. It allows carcasses of game birds to be imported from regions where END exists if they have been eviscerated and the heads and feet removed. The viscera, heads, and feet may not be imported into the United States. We are seeking comment on whether we should apply the same conditions to importation of carcasses of game birds from regions with HPAI. We further seek comment on whether different requirements should apply to carcasses of game birds depending on whether they are imported from a region with HPAI subtype H5N1, or from a region with another subtype of HPAI. In your comments, please address how any such requirement would address the risks of spreading HPAI associated with importing carcasses of game birds.

This action is necessary to ensure continuing protection against the introduction of HPAI into the United States. All subtypes of HPAI are threats to U.S. poultry industries, and current regulations do not directly address all subtypes of HPAI, relying instead on the overlapped protection afforded by END restrictions. However, continuing rapid changes in world trade patterns make it likely that eventually poultry products may be imported from a region with HPAI but without END. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule ( see DATES above). After the comment period closes, we will publish another document in the Federal Register . The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Order 12866, and an initial regulatory flexibility analysis that examines the potential economic effects of this interim rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site ( see ADDRESSES above for instructions for accessing Regulations.gov). The economic analysis is also available for review in our reading room (information on the location and hours of the reading room is listed under the heading ADDRESSES at the beginning of this document).

This rule amends the regulations concerning the importation of animals and animal products to prohibit or restrict the importation of live birds and poultry and bird and poultry products from regions where any subtype of highly pathogenic avian influenza is considered to exist. The rule also adds restrictions concerning importation of live poultry and birds that have been vaccinated for the H5 and H7 subtypes of avian influenza, or that have moved through regions where any subtype of HPAI is considered to exist. These restrictions supplement existing restrictions on the importation of live birds and poultry, and bird and poultry products and byproducts from regions where exotic Newcastle disease or HPAI subtype H5N1 are considered to exist. They are necessary to prevent the introduction of HPAI into the United States.

Because of the current substantial overlap between existing restrictions to prevent the importation of articles that could introduce END and the new restrictions to prevent the importation of articles that could spread HPAI, this rule is not expected to cause significant economic effects. The effects it does have benefit domestic poultry producers and the associated costs should be borne largely by importers of poultry and poultry products.

Based on the domestic production and trade volumes, the interim rule is likely to benefit producers by protecting domestic flocks against the introduction of HPAI, while effects on consumers are expected to be negligible. The costs of complying with the requirements of the rule will largely be borne by persons importing poultry and poultry products into the United States. We do not expect small entities to be significantly affected by the interim rule, other than to benefit from the reduced risk of introduction into the United States of HPAI. Overall, the restrictions placed on imports of birds, poultry, and bird and poultry products will closely follow those already in place for END. The only substantive change will affect certain cooked poultry products with a requirement that cooked poultry carcasses or parts or products of carcasses be heated to a minimum internal temperature of 74 °C (165 °F) before shipment to the United States.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Has no retroactive effect and (2) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection and recordkeeping requirements included in this interim rule have been submitted for emergency approval to the Office of Management and Budget (OMB). OMB has assigned control number 0579-0367 to the information collection and recordkeeping requirements.

We plan to request continuation of that approval for 3 years. Please send written comments on the 3-year approval request to the following addresses: (1) Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503; and (2) Docket No. APHIS-2006-0074, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comments refer to Docket No. APHIS-2006-0074 and send your comments within 60 days of publication of this rule.

This interim rule affects the importation of birds and poultry and bird and poultry products from regions where any subtype of HPAI is considered to exist. The rule includes information collection activities. In many cases the information collection activities with regard to HPAI are already occurring because the countries involved have END. New information collections will generally occur only when products are imported from a country where HPAI is considered to exist but END is not considered to exist. Such cases should be rare, but when they do occur the information collections are associated with certificates and with recordkeeping required for processing facilities.

In addition, this rule requires an additional statement on the certificate already required by § 93.104 for imported live birds and by § 93.205 for imported live poultry. That certificate must now contain an additional statement that the poultry it applies to have not been moved through a region considered to have any subtype of HPAI. Also, the certificate currently required by § 94.26 to import live poultry and other products from certain regions that supplement their meat supply from, or have a common land border with, regions considered to have END will now also be required for imports from regions considered to have HPAI.

We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

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

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.4986072 hours per response.

Respondents: U.S. importers, owners or operators of establishments that handle restricted or controlled materials, and foreign animal health authorities.

Estimated annual number of respondents: 416.

Estimated annual number of responses per respondent: 1.7259615.

Estimated annual number of responses: 718.

Estimated total annual burden on respondents: 358 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we are amending 9 CFR parts 93, 94, and 95 as follows:

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, is considered the State of Design for PIAGGIO AERO INDUSTRIES S.p.A Model PIAGGIO P-180 airplanes. A reported occurrence of the flight controls jamming on a Model PIAGGIO P-180 airplane prompted EASA to issue AD No. 2007-0025, dated February 1, 2007. This prompted the FAA to issue AD 2007-24-15, Amendment 39-15281 (72 FR 67843, December 3, 2007). AD 2007-24-15 requires correcting the fuselage drain system and ensuring that the drain lines of the environmental unit condenser are not clogged.

Since AD 2007-24-15 became effective, we received reports of two additional incidences of water accumulating in the belly of the fuselage that froze and caused the flight controls to jam on Model PIAGGIO P-180 airplanes. These reports prompted us to issue Emergency AD 2011-01-51 on December 18, 2010, to require an immediate functional test of the fuselage drain holes and submitting a report of the results to the FAA. It also allows, with noted exceptions, for the return/position of the airplane to a home base, hangar, maintenance facility, etc.

After we issued Emergency AD 2011-01-51, we realized that we inadvertently omitted figure 2 in Appendix 1. This prompted us to supersede Emergency AD 2011-01-51 and issue Emergency AD 2011-01-53.

This condition, if not corrected, could result in water or fluid accumulating in the belly of the fuselage and freezing when the aircraft reaches and holds altitudes where the temperature is below the freezing point, which could cause the flight controls to jam with consequent loss of control.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

We are superseding Emergency AD 2011-01-51 with a new AD, which was issued as Emergency AD 2011-01-53 on December 20, 2010. This AD retains the actions from Emergency AD 2011-01-51, adds figure 2 to Appendix 1, and corrects other minor typographical errors.

We consider this AD interim action. The FAA is working with EASA and PIAGGIO on this unsafe condition. Due to the nature of the immediate safety of flight situation, the FAA is working this AD concurrently with EASA instead of waiting for EASA, as the State of Design, to issue an AD. Thus, this action is considered unilateral AD action.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because water or fluid accumulating in the belly of the fuselage and freezing could cause the flight controls to jam with consequent loss of control. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2011-0054 and Directorate Identifier 2010-CE-070-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 102 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

The Commission is adding to its Rules of Practice  4 to establish procedures for instituting proceedings to determine whether an SRO's proposed rule change should be disapproved under Section 19(b) of the Exchange Act (§ 201.700 et seq. ) and is making corresponding changes to Rule 19b-4 under the Exchange Act (15 U.S.C. 78f(b)(4)). The Commission is also adding Rule 170 to Regulation P  5 to provide that § 201.700 et seq. establishes procedures for instituting proceedings to determine whether a PCAOB proposed rule should be disapproved.

Section 916 of the Dodd-Frank Act amended Section 19(b) of the Exchange Act, which governs the Commission's handling of proposed rule changes submitted by SROs, including national securities exchanges, the Financial Industry Regulatory Authority (“FINRA”), and registered clearing agencies. 6 Notably, the amendments to Section 19(b) in Section 916 of the Dodd-Frank Act established new statutory deadlines applicable to the Commission's publication and review of proposed SRO rule changes. 7

In order to advise the public of and align its regulations with its registration practices relating to certain kinds of group registrations involving photographic authorship, the Copyright Office is publishing this notice to establish a limited pilot program to allow online submission of copyright applications for photographs using the procedures for registration of (1) automated databases and (2) groups of published photographs.

For over three years, the Copyright Office has offered and encouraged the option of submitting applications for copyright registration online. See Online Registration of Claims to Copyright, 72 FR 36883 (July 6, 2007). However, although online registration has been available for basic registration claims, it has not yet been made generally available for group registrations. While the Office has proposed that online registration be required in the future for all group registrations, see Registration of Claims to Copyright, Group Registration Options, 73 FR 23390, 23392 (Apr. 30, 2008), that proposal has not yet been implemented because most of the group registration options require specialized applications that have not yet been integrated into the Office's eCO system.

The Copyright Office has long had in place provisions permitting photographers to register groups or collections of photographs. Since the enactment of the Copyright Act of 1976, the Copyright Office has permitted the registration of groups of unpublished photographs (or of any other unpublished works) as part of a single “collection” when certain requirements have been met. The most significant of those requirements are that the copyright claimant in each of the works, and in the collection as a whole, must be the same and that all the works must have at least one common author. See 37 CFR 202.3(b)(4)(i)(B). Similarly, for published works, registration as a single work has been permitted for “all copyrightable elements that are otherwise recognizable as self-contained works, that are included in a single unit of publication, and in which the copyright claimant is the same.” 37 CFR 202.3(b)(4)(i)(A).

In 2001, after an extensive rulemaking proceeding, the Office adopted a group registration procedure for published photographs that complemented the already existing unpublished collection procedure. See Registration of Claims to Copyright; Group Registration of Photographs, 66 FR 37142 (July 17, 2001). The result was a new group registration procedure permitting registration of a group of published photographs, all taken by the same photographer and published within the same calendar year, upon submission of an application for registration and a deposit consisting of each of the images covered by the registration. At the same time, the Office liberalized its requirements with respect to acceptable formats of deposits of photographs for registrations of unpublished collections, as well as for the new group registration of published photographs option. See 37 CFR 202.3(b)(10) and 202.20(c)(2)(xx). The 2001 regulations ensured that the registration record and the deposit would provide a sufficient record to inform the public of the existence and scope of the registered copyright claim.

However, some groups of photographs have also been registered by using another option permitting group registration of automated databases. The group database registration option was first announced in 1989. See Registration of Claims to Copyright Registration and Deposit of Databases, 54 FR 13177 (March 31, 1989). It has been used to register databases consisting predominantly of photographic images since at least 1997. See, e.g., Registration No. VA 863-785 (Corbis Digital Online Update Group, from March 18-June 30, 1997) (effective date Nov. 6, 1997). While a published database would be registerable under the “single unit of publication” rule of § 202.3(b)(4)(i)(A), the group database registration provisions permit the making of a single registration that covers up to three months' worth of updates and revisions to an automated database when all of the updates or other revisions (1) are owned by the same copyright claimant, (2) have the same general title, (3) are similar in their general content, including their subject, and (4) are similar in their organization. 37 CFR 202.3(b)(5). Using this provision, stock photography agencies have been able to obtain registrations covering all the photographs added to their databases within a three-month period when they have obtained copyright assignments from the photographers.

In the coming months, the Copyright Office is likely to initiate a review of the circumstances and conditions under which database registrations may be made and the extent to which, going forward, such registrations should continue to be deemed to cover not only the compilation authorship ( i.e., the authorship involved in the selection, coordination and arrangement of the data and/or works assembled in a database) but also any or all of the works assembled in the database.

Accordingly, and in light of the longstanding availability of the option of registering unpublished collections and the lengthy and carefully considered rulemaking that established the procedures for group registration of published photographs, the Office prefers and urges claimants to use those two options when registering groups of photographs rather than using the provisions for registration of automated databases.

However, at least at this point in time, the Office is not prepared to impose new limits on the availability of group registration for automated databases when the content that is registered is primarily photographic in nature. In fact, the Visual Arts Division has accepted some online applications for registration of photographic databases and has adopted certain practices that are not currently reflected in the Office's regulations. The Register has concluded that it would be advantageous to the Office and applicants to conduct a pilot program to evaluate the conditions under which online registration of automated databases consisting predominantly of photographs can and should be made, and to clarify in the Office's regulations that online applications may be accepted for such databases.

Similarly, some applicants have already submitted online applications for registration under the Office's procedure for group registration of published photographs in recent months. Although the Office had not announced the availability of online applications for group registration of photographs, the Visual Arts Division has processed some online applications when all the required information has been included. In order to reconcile this practice with the Office's regulations and to determine what ultimately will be the specific requirements for online applications for group registration of published photographs, the Office is also offering a pilot program to assess online applications for group registration of photographs.

Currently, the Office encourages the initial registration of an automated database to be submitted electronically through the Office's eCO system. However, the Office generally has not allowed group registrations, including group registrations of automated databases, to be submitted through the eCO system because eCO is not yet set up to take in the information required on the specialized application forms for many of the Office's group registration options. With respect to group registration of automated databases, the Office's existing regulation provides that “[a]n application for group registration of automated databases under section 408(c)(1) of title 17 and this subsection shall consist of * * * [a] Form TX” along with the filing fee and deposit. 37 CFR 202.3(b)(5)(ii)(A). Form TX is a paper application

Other information provided by the Copyright Office relating to group database registrations also appears to be inconsistent with the acceptance of online applications. Until very recently, Circular 65, Copyright Registration for Automated Databases, stated: “Group registrations cannot be submitted through eCO or fill-in Form CO. Instead, the Form TX must be completed and mailed to the Copyright Office with the appropriate fee and deposit.” See Copyright Office, Circular 65, Copyright Registration for Automated Databases 3 (2009) (currently undergoing revision). See also Copyright Office Form Letter 110, Group Registration for Automated Databases (Revised: 27-Jun-2008), available at http://www.copyright.gov/fls/fl110.html.

Unlike most of the other group registration options, group registration for automated databases does not require a special group form. As noted above, traditionally such registrations have been made using Form TX, the paper form used for all published and unpublished nondramatic literary works. The Copyright Office's online registration system, eCO, currently is capable of handling applications for group registration of automated databases. However questions remain about the capacity of the system to accommodate applications listing very large numbers of authors or titles, and large or complex electronic transfers of deposits may encounter issues related to file size or transmission speed.

Moreover, although the provisions for group registration of automated databases traditionally have been used primarily for registrations of databases consisting either of literary works or of data, the Office has also, for over a decade, accepted applications for group registration of automated databases when the works collected in a database have consisted predominantly of photographic authorship. Such applications have been made using Form VA, the paper form used for works of the visual arts.

Thus, to the extent that the existing regulation on group registration of automated databases requires the use of Form TX, it is inconsistent with existing practice in two respects: (1) Some applications have been made online using eCO, rather than using a paper form, and (2) even when a paper form is used, a form other than Form TX may be used depending on the subject matter of the works included in the database.

In order to reconcile the regulatory text with current practice, the Office is amending its regulations governing group registration of automated databases to clarify that, rather than being required to use Form TX, an applicant should use the form that best reflects the subject matter of the works included in the database. 1 For example, when the works in a database consist predominantly of photographs, the print application should be made by submitting Form VA rather than Form TX. Moreover, the Office is formally announcing its pilot program allowing applicants to file online applications for automated databases consisting predominantly of photographs. Before filing such an online application, however, the applicant must first contact the Office's Visual Arts Division at 202-707-8202 to coordinate the filing and to obtain proper guidance concerning the information to be included in the application. Applicants will only be allowed to file online applications for automated databases consisting predominantly of photographs after obtaining authorization from the Visual Arts Division and following the Division's instructions. In order to utilize the online registration system's capacity to accept more information in an application covering a large number of works and thereby to create a clearer, more comprehensive public record, and in order to adapt to lessons learned as such applications are examined and processed, the Visual Arts Division will permit participation in the pilot program only by applicants who can utilize the online registration system consistent with those goals. For now, the online registration option for group database registrations will be limited to photographic databases.

A significant respect in which the provisions governing registration of automated databases differ from the other provisions for registration of photographs discussed above lies in the relaxed deposit requirements for databases embodied in machine-readable copies (other than in a CD-ROM format). Section 202.20(c)(2)(vii)(D)(5) of the Copyright Office regulations provides that for group database registrations (as well as single database applications), the application need not be accompanied by a deposit of the entire work, but instead may be accompanied by identifying material consisting of fifty representative pages or data records marked to show the new material added on one representative day, along with some additional identifying information. As a result, the deposit accompanying a database registration application can consist of a fraction of the copyrightable material that is covered by the registration.

This is in stark contrast to the deposit requirements for registration of unpublished collections, for group registrations of published photographs, and for most other forms of copyright registration. Section 202.3(b)(10)(x), which governs the deposit for a group registration of photographs, provides that the deposit shall consist of “one copy of each photograph [to] be submitted in one of the formats set forth in Sec. 202.20(c)(2)(xx).” See also § 202.20(c)(1)(i) (“in the case of unpublished works, [the deposit shall consist of] one complete copy or phonorecord,” a provision that applies to registrations of unpublished collections as well as individual unpublished works). Section 202.20(c)(2)(xx) provides for a number of options with respect to the formats in which photographs may be submitted.

The Copyright Office believes that when registration is made for a database consisting predominantly of photographs and the copyright claim extends to the individual photographs themselves, each of those photographs should be included as part of the deposit accompanying the application. As the Office said when it announced its regulations on group registration of published photographs:

Moreover, the actual practice with respect to online registrations of predominantly photographic databases has in fact been to include all of the photographs in the deposit. In order to conform to actual practice and the Office's determination of what a reasonable deposit requirement should include, the Office is amending its regulations to provide that when an online application is made for registration of an automated database consisting predominantly of photographs, the deposit shall include all of the photographs claimed to be part of the registration. Identifying material will not constitute a sufficient deposit. As noted above, this conforms with what has in fact already been the general practice with respect to online applications. The Office is separately publishing a notice of proposed rulemaking that would impose a similar requirement with respect to paper applications for registration of photographic databases.

The requirement that all photographs covered by a registration are to be included as part of the deposit is in addition to the existing deposit requirements for identifying material set forth in section 202.20(c)(2)(vii)(D).

Because of issues regarding limitations on the size of deposits that may be submitted online, applicants for group registrations of photographic databases must confer with the Visual Arts Division with respect to each application to determine whether to submit their deposits electronically, or whether to submit the deposits by mail using one of the approved formats set forth in 37 CFR 202(c)(2)(xx).

As with group database registrations, up to now the Office has not formally announced that online registration is available for group registration of published photographs. However, a number of claimants have submitted applications for group registration of published photographs through eCO and the Visual Arts Division has in some cases processed those claims.

Because experience has shown that the requirements for group registration of published photographs can be satisfied by means of online applications, the Office has decided that it will undertake a pilot program to assess the online application process for these applications. This will enable the Office to determine whether the eCO system can successfully handle different applications for group registration of published photographs. Therefore, applicants wishing to obtain group registrations for published photographs will be allowed to apply for registration online during the pilot program. As with group registrations of photographic databases, before filing such an online application, the applicant must first contact the Office's Visual Arts Division at 202-707-8202 to coordinate the filing and to obtain guidance concerning the information to be included in the application. Applicants will only be allowed to file such online applications after obtaining authorization from the Visual Arts Division and following the Division's instructions. Additionally, applicants must confer with the Visual Arts Division with respect to each application in order to determine whether their deposits may be submitted electronically due to potential limitations on the size of electronically submitted deposits.

The Office is also amending Section 202.20(c)(2)(xx) to correct three cross-references to other regulations.

Section 553(b)(3)(A) of the Administrative Procedure Act states that general notice of proposed rulemaking is not required for rules of agency organization, procedure, or practice. Since the Office finds that the following interim regulations are rules of agency organization, procedure, or practice, no notice of proposed rulemaking is required. Additionally, the interim regulations are consistent with the Office's existing practices and relieve applicants from procedural restrictions. Pursuant to section 553(d) of the Administrative Procedure Act, these regulations may be effective immediately. Moreover, the Register finds that because these regulations provide additional options to applicants for registration of automated databases and for group registration of published photographs, good cause exists for making these interim rules effective immediately and without notice and comment. As the pilot program for online registration of these groups proceeds, the Office will learn from its experience and develop proposals for more comprehensive final regulations.

For the reasons set forth in the preamble, part 202 of Title 37 of the Code of Federal Regulations is amended to read as follows:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:

EPA is approving revisions to the Missouri SIP and Operating Permits Program. Revisions to the Missouri SIP rescind three rules related to the time schedule for initial compliance for sources existing at the time of promulgation of the original rules. The purpose of these rules was to establish compliance schedules for sources that were in operation more than 30 years ago. (For example, 10 CSR 10-5.250 required existing sources to comply with emissions limitation no later than January 31, 1973, if they emitted sulfur dioxide from the use of fuel.) These rules are identified in the approved SIP as 10 CSR 10-2.150, 4.140, and 5.250, applicable to the Kansas City, Springfield, and St. Louis areas. These rules are obsolete and no longer needed, as compliance dates are contained in other State rules, or, if there is no date specified, is the effective date of the rule. Removing them does not adversely affect the stringency of the SIP. EPA is approving Missouri's request to remove the corresponding Federally-approved rules from the Missouri SIP.

EPA is also approving revisions to the Operating Permits Program (10 CSR 10-6.110). One revision changes the reporting threshold for small sources, so that small sources are allowed to fill out a short emissions form instead of a long form if they increase or decrease emissions under a certain threshold. The threshold would change from an increase of 20 percent of emissions from the prior year to 5 tons from the prior year. Sources with small baseline emissions might have substantial percentage increases, but very small tonnage increases. This revision allows small sources to continue to report emissions using a shorter form. The second revision removes references to the requirement to annually set the emission fee, because the Missouri statute does not require an annual fee adjustment unless determined necessary by the Air Conservation Commission.

EPA is approving the request to amend the Missouri SIP by removing three rules related to the time schedule for compliance and approving the request to amend the operating permits program by changing the reporting threshold for small sources and removing references to the requirement to annually set the emission fee.

Approval of these revisions will ensure consistency between State and Federally-approved rules. EPA has determined that these changes will not relax the SIP or adversely impact air emissions.

We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial and make regulatory revisions, required by State statute. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 25, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

This is a synopsis of the Commission's Report and Order, MM Docket No. 99-238, adopted January 4, 2011, and released January 5, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. This document will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via e-mail http://www.BCPIWEB.com. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows:

NASA published a proposed rule in the Federal Register (73 FR 73201-73202) on December 2, 2008. The sixty day comment period expired February 2, 2009. Six comments were received from two respondents.

Comment: IT Security should be addressed through government-wide policies, standards, and requirements.

NASA response: NASA has requested that the Defense Acquisition Regulation (DAR) Council consider a government-wide IT Security clause. However, due to the critical importance of protecting the Agency's Information Technology (IT) resources, the Agency will continue to pursue this case. When and if the Federal Acquisition Regulation (FAR) is amended to include similar coverage, the Agency will modify or eliminate any redundant coverage.

Comment: The proposed requirement to maintain a listing of NASA Electronic Information and IT resources is too broad.

NASA response: Although maintaining an inventory of electronic messages and other documents may appear burdensome, this information can be critical to the maintenance of our information systems and in meeting our institutional and mission objectives. At the completion of the contract, the Contracting Officer will be supported by the cognizant subject matter experts in properly assessing the information and determining disposition instructions.

Comment: The proposed requirement to represent that all NASA Electronic Information has been purged from the contractor's IT systems is unworkable.

NASA response: The clause has been revised and purging requirements have been deleted.

Comment: NASA should clarify the IT Security Management Plan Requirement.

NASA response: This requirement has been clarified at 1852.204-76. The IT Security Management Plan addresses how the contractor will manage personnel and processes associated with IT Security on the instant contract.

Comment: The Access Provision in NFS 1852.204-76 is duplicative of FAR 52.215-2 and should be deleted.

NASA response: FAR 52.215-2 deals primarily with access to the Contractor's cost and pricing data and other supporting records. The proposed provisions of 1852.204-76(f) concern access to contractor facilities, installations, operations, etc. in order to conduct IT inspection, investigation, and audit to safeguard against threats and hazards to NASA Electronic Information.

Comment: The Applicable Documents List (ADL) should contain all relevant security documents.

NASA response: The ADL attached to the contract will provide a specific listing of all documents applicable to the contract. The ADL will point to NASA's Chief Information Officer (CIO) Web site at http://www.nasa.gov/offices/ocio/itsecurity/index.html and specifically to the section containing full text versions of all applicable documents. The Web site will also maintain archive access to previous versions of applicable documents to support any contract administration issues that may arise during performance of the contract.

This is not a significant regulatory action and, therefore, is not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804.

This final rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. because it does not impose any new requirements. The rule may result in some time savings, thereby reducing the economic impact to small entities because all contract IT requirements are being centralized at one easy-to-locate site.

The Paperwork Reduction Act (Pub. L. 104-13) is not applicable because the NFS changes do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Accordingly, 48 CFR parts 1804 and 1852 are amended as follows:

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2011 Pacific cod TAC allocated as a directed fishing allowance to pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI is 8,685 metric tons as established by the final 2010 and 2011 harvest specifications for groundfish in the BSAI (75 FR 11778, March 12, 2010) and inseason adjustment (76 FR 467, January 5, 2011).

In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the A season allowance of the 2011 Pacific cod TAC allocated as a directed fishing allowance to pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 18, 2011.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2011 TAC of pollock in Statistical Area 610 of the GOA is 4,786 metric tons (mt) as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010) and inseason adjustment (76 FR 469, January 5, 2011).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2011 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,686 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 18, 2011.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2011 TAC of pollock in Statistical Area 630 of the GOA is 4,475 metric tons (mt) as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010) and inseason adjustment (76 FR 469, January 5, 2011).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2011 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,175 mt, and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 18, 2011.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.