The Office of Management and Budget (OMB) has determined that this rule is non-significant for the purpose of Executive Order 12866 and, therefore, it has not been reviewed by OMB.

Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563-0053 through March 31, 2012.

FCIC is committed to complying with the E-Government Act of 2002, 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.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, and all producers are required to submit a notice of loss and production information to determine the amount of an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or action by FCIC to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought.

This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

On November 19, 2010, FCIC published a notice of proposed rulemaking in the Federal Register at 75 FR 70850-70852 to revise 7 CFR part 457, Common Crop Insurance Regulations, by revising § 457.105 (Extra Long Staple Cotton Crop Insurance Provisions). Requests have been made for changes to improve the coverage offered, address program integrity issues, and simplify program administration. The provisions will be effective for the 2012 and succeeding crop years.

A total of six comments were received from one commenter. The commenter was an insurance service organization. The comments received and FCIC's responses are as follows:

Comment: A commenter suggests FCIC remove the Basic Provisions section titles which are set off by parenthesis throughout the Crop Provisions, as has been done when other Crop Provisions that have been revised recently. For example, section 2 could read “In addition to the requirements of section 3 of the Basic Provisions * * *” [deleting the parenthetical “* * * (Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities) * * *” following “section 3”]. Affected sections are 2, 3, 4, 5, 6, 7(b), 8, and 9(a).

Response: Although this section was not included in the proposed rule, FCIC agrees and has revised the provisions accordingly since it is a technical correction and does not change the meaning or intent of the provision.

Comment: A commenter recommends changing “The total production (pounds) to count * * *” in section 10(c) to “The total production to count (in pounds) * * *” so as to keep the phrase “production to count” intact.

Response: Although this section was not included in the proposed rule, FCIC agrees and has revised the provisions accordingly since it is a technical correction and does not change the meaning or intent of the provision.

Comment: A commenter supports the proposed changes of the prices used in section 10(d) and (f) and the change of the Price B percentage used from 75 percent to 85 percent since equivalent changes have already been made in the 2011 Cotton Crop Provisions.

Response: FCIC thanks the commenter for their support regarding the changes of the prices used in section 10 and the change of the Price B percentage.

Comment: A commenter points out the Background section of the Proposed Rule states the following: “FCIC also proposes to change the percentage of Price B from 75 percent to 85 percent in sections 10(d) and 10(d)(3). This does not change the existing terms of the policy because the change was already implemented in the Special Provisions. FCIC is proposing to move the provision to the Crop Provisions because the change is being implemented in all areas where ELS cotton is available.”

• If the summary of this Proposed Rule accurately describes the actions taken, and represents clarification or standardization to conform to the 2011 Basic Provisions, the only comment would concern whether FCIC has conducted whatever necessary rate impact evaluations and made any necessary adjustments. Whether or not the rate analysis has been done is a little unclear based on two phrases in the third paragraph of item 2 in the Background section of the Proposed Rule.

• The second sentence of the paragraph in the Background section suggests the change to 85 percent “was” already implemented (in the past), while the third sentence indicates the change “is being” implemented (currently) everywhere ELS Cotton is insurable. The difference between “was” and “is being” might be explained in the context that the change to 85 percent “was” already added in a previous year's Special Provisions, and now “is being” added in the Crop Provisions instead (with a Special Provisions statement no longer being necessary), but it could be clarified. Was the 85 percent change previously in the Special Provisions for ALL counties where ELS Cotton was insurable, or only in some?

Response: The change from 75 percent to 85 percent was put into place in crop year 2000 with a Special Provisions statement. At the time the change was implemented, a rate adjustment was made. There has been nothing in the performance of the policy to suggest that this rate change was not appropriate or was inadequate. Therefore, no additional rate analysis is necessary.

The Special Provisions statement that says the production to count will be reduced if price quotation “A” is less than 85 percent of price quotation “B” will be removed from the Special Provisions and incorporated into the Crop Provisions. The change was made years ago and this Special Provisions statement existed in all counties where ELS Cotton is insurable. As incorporated into the Crop Provisions, no new Special Provisions statements will be required if ELS cotton is expanded to additional counties.

Comment: A commenter recommends eliminating the option to increase prevented planting coverage levels.

Response: This section was not included in the proposed rule and would be considered a substantive change to the policy. Since the public was not provided an opportunity to comment, FCIC cannot consider the recommended change.

In addition to the changes described above, FCIC has revised section 10(f) by removing the phrase “Any AUP cotton” and replacing it with the phrase “Mature AUP cotton” to clarify the AUP cotton must be mature in order to calculate a conversion factor between AUP cotton and ELS cotton.

Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation amends 7 CFR part 457 effective for the 2012 and succeeding crop years for the Extra Long Staple Cotton Crop Insurance Provisions.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to run would be impracticable and contrary to the public interest in that it would inhibit the Coast Guard's ability to protect the public from the hazards associated with fireworks displays on navigable waters.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, a 30 day notice period would be impractical and contrary to the public interest.

The Lorain Independence Day Fireworks is an event established to celebrate United States Independence. The fireworks display will occur on July 3, 2011 from 9:30 p.m. until 11 p.m. The Captain of the Port Buffalo has determined that fireworks launched proximate to watercraft pose a significant risk to public safety and property. Thus, this temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with the aforesaid fireworks display. Establishing a safety zone to control vessel movement around the location of the launch area will help ensure the safety of persons and property at these events and help minimize the associated risks.

This temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching the fireworks during the Lorain Independence Day Fireworks. It will encompass a 1,400 ft radius at the end of the break wall at the Spitzer Lakeside Marina in Lorain, OH. This temporary safety zone will be effective and enforced from 9:30 p.m. until 11 p.m. on July 3, 2011.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Spitzer Lakeside Marina in Lorain, OH on July 03, 2011 from 9:30 p.m. until 11 p.m.

This safety zone will not have a significant economic impact on a substantial number of small entities because of the minimal amount of time in which the safety zone will be enforced. This safety zone will only be enforced for 90 minutes in a low vessel traffic area. Vessel traffic can pass safely around the zone. Before the effective period, we will issue maritime advisories, which include a Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to run would be impracticable and contrary to the public interest in that it would inhibit the Coast Guard's ability to protect the public from the hazards associated with the below discussed fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, a 30-day notice period would be impractical and contrary to the public interest.

The Conneaut Festival is an event established to celebrate United States independence and includes a fireworks display, which will be launched from a water location. The fireworks display will occur on July 3, 2011 from 9:30 p.m. until 10:45 p.m. The Captain of the Port Buffalo has determined that fireworks launched proximate to watercraft pose a significant risk to public safety and property. Thus, this temporary safety zone is necessary to ensure the safety of vessels and spectators from the hazards associated with the aforesaid fireworks display. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at this event.

This temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of the fireworks display occurring during the Conneaut Festival. It will encompass an 840 ft radius in part of the waters of Conneaut Harbor from position +41°58′2.22″ N, −80°33′39.89″ W. This temporary safety zone will be effective and enforced from 9:30 p.m. until 10:45 p.m. on July 3, 2011.

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port Buffalo or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his on-scene representative. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Conneaut Harbor, Conneaut, OH on July 03, 2011 from 9:30 p.m. until 10:45 p.m.

This safety zone will not have a significant economic impact on a substantial number of small entities because of the minimal amount of time in which the safety zone will be enforced. This safety zone will only be enforced for 75 minutes in a low vessel traffic area. Vessel traffic can pass safely around the zone. Before the effective period, we will issue maritime advisories, which include a Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Purpose of Program: The Investing in Innovation Fund, established under section 14007 of the American Recovery and Reinvestment Act of 2009 (ARRA), provides funding to (1) local educational agencies (LEAs), and (2) nonprofit organizations in partnership with (a) one or more LEAs or (b) a consortium of schools. The purpose of the i3 program is to provide competitive grants to applicants with a record of improving student achievement and attainment in order to expand the implementation of, and investment in, innovative practices that are demonstrated to have an impact on improving student achievement or student growth, closing achievement gaps, decreasing dropout rates, increasing high school graduation rates, or increasing college enrollment and completion rates.

Grants awarded under the i3 program (1) Allow eligible entities to expand and develop innovative practices that can serve as models of best practices, (2) allow eligible entities to carry out that work in partnership with the private sector and the philanthropic community, and (3) support eligible entities in identifying and documenting best practices that can be shared and taken to scale based on demonstrated success.

Program Authority: American Recovery and Reinvestment Act of 2009, Division A, Section 14007, Public Law 111-5.

Applicable Regulations: (a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR parts 74, 75, 77, 79, 80, 81, 82, 84, 85, 86, 97, 98, and 99. (b) The notice of final priorities, requirements, definitions, and selection criteria for this program, published in the Federal Register on March 12, 2010 (75 FR 12004-12071).

Background: The Department published a proposed notice of revisions to priorities, requirements, and selection criteria (2011 Notice of Proposed i3 Revisions) in the Federal Register on January 10, 2011 (76 FR 1412-1415). That notice contained background information and our reasons for the proposed revisions.

There is one difference between the proposed revisions to priorities, requirements, and selection criteria and these final revisions to priorities, requirements, and selection criteria.

Public Comment: In response to our invitation in the 2011 Notice of Proposed i3 Revisions, 18 parties, including nonprofit organizations, professional associations, and private citizens, submitted comments.

We address general comments and then discuss other substantive issues under the title of the item to which they pertain. Generally, we do not address technical and other minor changes.

Analysis of Comments and Changes: An analysis of the comments received on, and any changes to, the revisions to the priorities, requirements, and selection criteria since publication of the 2011 Notice of Proposed i3 Revisions follows.

Comment: While one commenter endorsed all of the proposed revisions, a few commenters expressed dissatisfaction with the overall structure and operation of the i3 program, stating that the proposed revisions were insufficient and would not improve the program.

Discussion: The Department appreciates the feedback on how the i3 program could be improved. However, the proposed revisions to the priorities, requirements, and selection criteria were not intended to substantially change the program but, instead, were intended to give the Secretary flexibility in a few discrete areas (selecting priorities and selection criteria and adjusting the private-sector matching percentages on a competition-by-competition basis) and to modify our requirement on grant award limits. We believe that by establishing the flexibility to select the most appropriate priorities, requirements, and selection criteria for each type of grant (Scale-up, Validation, or Development) under this program in any year in which the Department makes new i3 awards, the Secretary will be able to use the i3 program to meet the evolving needs of the American education system. A substantial revision of the structure and operation of the i3 program could be proposed by the Department in the future. If the Department decides to propose such a revision, the concerns raised and suggestions made in comments regarding the overall structure of the i3 program would be considered.

Changes: None.

Comment: A few commenters stated that the Department should use all four absolute priorities in all future i3 competitions. One commenter stated that the integrity of the i3 program relies on whole-scale reform that can be achieved only by applying all four absolute priorities in all future competitions. One commenter noted that the priorities established under the 2010 i3 NFP are generally broad and would be relevant in most years of the foreseeable future, which would make it unnecessary to exclude a priority in a given year.

Discussion: The Department agrees that all four absolute priorities are important to whole-scale education reform. However, the Department also recognizes that one or more of the four absolute priorities may be relatively more important in a given year. With the flexibility to select the absolute priorities for a given i3 competition, the Secretary can consider and select priorities that best support the needs of the American education system in a given year.

Additionally, although applicants selected for funding in the FY 2010 competition officially applied under one absolute priority, they tended to address several of the absolute priorities in responding to the selection criteria. Therefore, even if all four absolute priorities established in the 2010 i3 NFP are not used in a given year's competition, it is still likely that we would receive applications addressing the four reform areas.

Changes: None.

Comment: One commenter stated that the applications funded in the FY 2010 i3 competition under Absolute Priority 1: Innovations that Support Effective Teachers and Principals focused predominantly on teachers instead of principals, resulting in minimal funding of efforts to improve school leadership. The commenter recommended that the Department separate Absolute Priority 1 into two separate priorities—one focused on teachers and one focused on principals.

Discussion: Absolute Priority 1 focuses on practices, strategies, or programs that increase the number or percentages of highly effective teachers or principals (or reduce the number or percentages of ineffective teachers or principals), especially for high-need students. Under this priority, applicants already may determine whether their proposed project will focus on teachers or principals.

The 2011 Notice of Proposed i3 Revisions did not propose any changes to the text of the absolute priorities established in the 2010 i3 NFP. For this reason, we do not believe it is appropriate to make changes to the text of the priorities through this notice. However, when designing future i3 competitions, the Department may consider revising Absolute Priority 1 or developing a priority focused exclusively on school leadership. If in a future competition the Department decides to propose such a new priority or revise an existing priority, rather than select from the established priorities, the Department would comply with any applicable rulemaking requirements.

Changes: None.

Comment: A number of commenters recommended additional priorities for the Department to use in future i3 competitions, including priorities on promoting diversity, expanding learning time, supporting school start-up models, and using technology to improve instruction.

Discussion: While the Department recognizes the importance of the issues and topics mentioned by the commenters, this notice is not intended to specify the absolute or competitive preference priorities that will be used in a given year's i3 competition. Rather, the purpose of this notice is to provide the Secretary with the flexibility to use any of the absolute or competitive preference priorities announced in the 2010 i3 NFP in any future i3 competition. When designing future i3 competitions, the Department may consider using other priorities, including the priorities recommended by the commenters as well as the Secretary's Supplemental Priorities, published in the Federal Register on December 15, 2011 (75 FR 78486-78511). If in a future competition the Department decides to propose a new priority or revise an established i3 priority, rather than select from existing priorities, the Department would comply with any applicable rulemaking requirements.

Changes: None.

Comment: A few commenters expressed support for giving the Secretary the flexibility to use one or more of the established competitive preference priorities in a given year's competition. One commenter requested that the Department use this flexibility to remove Competitive Preference Priority 8: Innovations that Serve Schools in Rural LEAs because, according to the commenter, it disadvantages all other applicants.

Discussion: We appreciate the commenters' support for providing the Secretary with the flexibility to use one or more of the established priorities in a given year's competition.

With regard to the commenter's recommendation that the Department use the flexibility afforded under this notice to remove Competitive Preference Priority 8: Innovations that Serve Schools in Rural LEAs, we note that the flexibility provided enables the Secretary to select priorities on a competition-by-competition basis—that is, through the notice inviting applications, not this notice. In any given year, Competitive Preference Priority 8 may be appropriate because it acknowledges that solutions to educational challenges may be different in rural areas than in urban and suburban communities and that there is a need for solutions to unique rural challenges. The Department aims to ensure that projects serving high-needs students in diverse contexts can compete for i3 funding.

Changes: None.

Comment: A few commenters opposed giving the Secretary the flexibility to use one or more of the established competitive preference priorities in a given year's competition. One commenter recommended that the Department use all of the competitive preference priorities established in the 2010 i3 NFP in all future competitions. Another commenter opposed the proposed revision because it would allow any future Secretary to determine that early learning is not a priority in a given year.

Discussion: In the FY 2010 i3 competition, the Department identified four competitive preference priorities aligned with the Department's reform goals. Although we recognize the importance of these priorities, we appreciate that the needs of the American education system may change. We believe it is important that the Secretary have the flexibility to consider multiple factors in determining whether to award competitive preference points in a given competition. This notice allows for that consideration by providing the Secretary with flexibility to use one or more of the competitive preference priorities established in the 2010 i3 NFP.

Changes: None.

Comment: Two commenters expressed support for providing the Secretary with the flexibility to use one or more of the established priorities in a given year's competition, but recommended that the Department provide the public with the opportunity to comment on the selected priorities for each year's competition.

Discussion: Under the General Education Provisions Acts (GEPA) and the Administrative Procedures Act (APA), the Department, in most cases, is required to seek public comment on proposed rules, including proposed priorities, requirements, definitions, and selection criteria for a grant competition, and then publish a final rule along with responses to the comments received on the proposed rule. The Department already sought, received, and responded to public comment on the absolute and competitive preference priorities established in the 2010 i3 NFP. As we stated in that notice, in any year in which we choose to use these priorities, we will announce them in a notice inviting applications published in the Federal Register . Following this process (rather than seeking additional public comment on priorities that have already gone through rulemaking) allows the Department to award grants on a more efficient and timely basis. However, if in a future competition the Department decides to propose a new priority or revise an established i3 priority, rather than select from existing priorities, the Department would comply with any applicable rulemaking requirements.

Changes: None.

Comment: Many commenters supported the proposed change that clarified that the limit of two grant awards applies to a single year's competition. However, two commenters recommended that the Department apply the requirement differently depending on the type of grant award (Scale-up, Validation, or Development). One commenter stated that the limit of two grant awards in a single year's competition should apply only to Validation and Development grants and that a Scale-up grantee should not be permitted to reapply or receive funding for the same or a similar project in the year immediately following the year it was awarded a grant. In addition, one commenter recommended that no grantee be allowed to receive more than two Scale-up or Validation grants in a single year's competition.

Discussion: In the 2010 i3 NFP, the Department established the requirement on the “Limits on Grant Awards” to ensure that i3 funds are used to support the widest possible array of innovative projects. Generally, we agree with commenters that the limitations on grant awards for Scale-up and Validation grantees should be more stringent than the limitation on grant awards for Development grants because of the size of the awards and the complexity of these grants. As a result, we have modified the proposed requirement on the “Limit on Grant Awards” to further limit the number of Scale-up and Validation grants a grantee may receive to only one grant in two consecutive years. Thus, if a grantee receives a Scale-up or Validation grant in one year, that grantee would not be eligible to receive a Scale-up or Validation grant the next year.

We have also modified the requirement on “Limits on Grant Awards” to clarify that the limit applies to new grant awards made in a year in which the Department funds down the slate from a prior year's competition, but not to continuation awards. The purpose of this requirement is to limit the number of new awards received by a single grantee, whether through a competition or funding down the slate from a prior year's competition; the purpose is not to limit possible continuation awards.

Changes: We have revised the proposed “Limits on Grant Awards” requirement to clarify that the limitation applies to new awards. Specifically, the revised requirement states that (a) No grantee may receive more than two new grant awards of any type under the i3 program in a single year; (b) In any two-year period, no grantee may receive more than one new Scale-up or Validation grant; and (c) No grantee may receive more than $55 million in new grant awards under the i3 program in a single year.

Comment: One commenter opposed the proposed change to limit an applicant to two grant awards in a single year's competition. The commenter stated that limiting grant awards in only a single year's competition would allow successful applicants to pull further ahead of unsuccessful applicants and, thus, would increase the resource gap among applicants.

Discussion: As discussed elsewhere in this notice, in addition to clarifying that no grantee may receive more than two grant awards in a single year, the Department further modified the requirement on the “Limits on Grant Awards” so that no Scale-up or Validation grantee can receive more than one Scale-up or Validation grant in any two-year period. The Department appreciates the commenter's concern and believes that this additional change appropriately balances the program's purpose of supporting the implementation of and investment in innovative practices that are demonstrated to improve student academic achievement and attainment with the desire to support a wide array of innovative projects.

With regard to Development grants, we note that most of the i3 applications submitted in the FY 2010 i3 competition were applications for Development grants. Given the high volume of applications, and our expectation that the competition for Development grants will remain highly competitive, we are not establishing this same limitation on Development grantees.

Changes: As noted elsewhere in this notice, we have revised the “Limits on Grant Awards” requirement to state that no grantee may receive more than two new grant awards of any type under the i3 program in a single year; in any two-year period, no grantee may receive more than one new Scale-up or Validation grant; and no grantee may receive more than $55 million in new grant awards under the i3 program in a single year.

Comment: Many commenters expressed support for the proposed revisions to the “Cost Sharing and Matching” requirement, which provides the Secretary with the flexibility to determine the required amount of private-sector matching funds or in-kind contributions that an eligible applicant must obtain for an i3 grant in a given year. One commenter stated that replacing a “one-size fits all” policy with this flexibility to determine the private-sector match on a more customized basis would broaden participation in future competitions.

In addition, two commenters provided recommendations on how the Department might use the proposed flexibility to require different matching levels for the different types of i3 grant awards (Scale-up, Validation, or Development). One commenter encouraged the Department to consider limiting the percentage of private-sector matches required for Scale-up grantees because they would have already received a significant level of private funding. In contrast, another commenter recommended that the Department maintain a significant matching requirement for Scale-up and Validation grants, but that a lower matching requirement be set for Development grants.

Discussion: The “Cost Sharing or Matching” requirement contained in the 2011 Notice of Proposed i3 Revisions states that to be eligible for an award, an eligible applicant must obtain private-sector matching funds or in-kind contributions equal to an amount that the Secretary will specify in the notice inviting applications for a particular i3 competition. We appreciate the commenters' support for this revision to the “Cost Sharing or Matching” requirement.

With respect to the comments requesting that we further modify this requirement to provide for different matching levels for the different types of grants, we do not believe that establishing fixed matching levels in this notice is appropriate. Furthermore, such a modification is not necessary because the proposed revision allows the Department to establish different matching levels for different types of grants when designing future i3 competitions.

Changes: None.

Comment: Two commenters expressed general support for the proposed changes to the “Cost Sharing or Matching” requirement in the 2011 Proposed i3 Revisions, but recommended that the Department also establish a ceiling on the private-sector match that could be required under any i3 competition.

Discussion: As noted in the 2010 i3 NFP, the Department considers the private-sector match to be a strong indicator of the potential for the scalability and sustainability of a proposed project over time. We decline to set a ceiling on the private-sector match because doing so would limit the Department's flexibility to leverage public- and private-sector investments in education. The flexibility offered by the revision will allow the Department to consider multiple factors when determining the required private-sector match, including the economic climate or the amount of time available for the highest-rated applicants to secure their private-sector matches.

Changes: None.

Comment: Two commenters suggested that the Department allow local educational agency (LEA) funds or other public funds to be used to meet the matching requirement. One commenter stated that this change would encourage LEAs to demonstrate their commitment to i3 projects, which would enhance the sustainability of those projects. Another commenter stated that it may be difficult for potential applicants to secure sizeable private-sector contributions and that undue reliance on the private sector could result in LEAs becoming overly beholden to private funders.

Discussion: Section 14007(b)(3) of the ARRA specifically requires a private-sector match for this program. Thus, an eligible applicant may not use funding from other Federal programs or other public sources (including an LEA's own funds) to satisfy the statutory “Cost Sharing or Matching” requirement. However, nothing prohibits an eligible applicant from securing public funds in addition to the required private-sector matching funds or in-kind contributions. In addition, eligible applicants can establish the terms and conditions of their private-sector partnerships and diversify the sources from which they seek support for i3 projects in order to avoid becoming unduly dependent on or beholden to any particular source or type of funding.

The Department understands the commenter's concern about the challenges of securing significant private-sector investments. This concern, however, is addressed by the flexibility provided in the “Cost Sharing or Matching” requirement, which allows the Secretary to determine the required amount of private-sector matching funds or in-kind contributions that eligible applicants must obtain under an i3 competition in a given year. We expect this determination to be based on an assessment of the capacity and resources available in that particular year. Moreover, an eligible applicant continues to have the option, under this requirement, to request in its application that the Secretary decrease the private-sector match amount it must provide.

Changes: None.

Comment: One commenter opposed the proposed revisions to the “Cost Sharing or Matching” requirement. Specifically, the commenter opposed providing the Secretary with the flexibility to determine the required amount of private-sector matching funds or in-kind contributions that an eligible applicant must obtain for an i3 competition in a given year. The commenter stated that requiring a private-sector partnership would be a violation of State and local laws.

Discussion: As noted elsewhere in this notice, an eligible applicant must demonstrate that it has established one or more partnerships with the private sector and that the private sector will provide matching funds. The “Cost Sharing or Matching” requirement is based on the cost-sharing and matching requirement in the authorizing legislation for the i3 program. Moreover, the commenter did not cite, and the Department is not aware of, any State or local laws that prohibit State and local governmental entities or private organizations from securing a private sector matching requirement in a Federal grant program.

Changes: None.

Comment: A few commenters supported permitting the Department, in establishing selection criteria used in grant competitions conducted under the i3 program, to choose selection criteria and factors—(i) From those established in the 2010 i3 NFP for the i3 program, (ii) from the menu of general selection criteria in the Education Department General Administrative Regulations (EDGAR) in 34 CFR 75.210, (iii) based on statutory provisions in accordance with 34 CFR 75.209, or (iv) from any combination of (i) through (iii) for competitions in FY 2011 and in subsequent years. However, one commenter encouraged the Department to maintain the selection criteria that focus on strength of research and evaluation.

Some commenters encouraged the Department to publish the specific selection criteria for a given competition as far in advance as possible. Two commenters recommended that the Department provide the public with an opportunity to comment on the selection criteria for each year's competition.

Discussion: We decline to establish specific mandatory selection criteria and factors within each criterion that must be used in all i3 competitions. As we discussed in the 2011 Notice of Proposed i3 Revisions, the purpose of the revisions concerning the use of the i3 selection criteria is to provide the Secretary with the flexibility to choose the selection criteria, and the factors included under each criterion, in order to better align the selection criteria used for the different types of grants (Scale-up, Validation, and Development) with the critical aims of that specific grant type and to better ensure that i3 projects address the most critical needs of education in a given year. With regard to the comment requesting that we maintain the selection criterion on strength of research evidence, we note that whether or not the Department uses this selection criterion, the evidence standards requirement must be met in order for an application to be eligible to receive an award. Specifically, an application for a Scale-up grant must be supported by strong evidence (as defined in the 2010 i3 NFP), an application for a Validation grant must be supported by moderate evidence (as defined in the 2010 i3 NFP), and an application for a Development grant must be supported by a reasonable hypothesis.

Regarding the recommendation that the specific selection criteria for each competition be submitted for public comment, the Department already sought, received, and responded to public comments on the selection criteria established in the 2010 i3 NFP, as well as the general selection criteria in EDGAR. However, in any year in which we choose to use these selection criteria, we will announce them in a notice inviting applications published in the Federal Register . Following this process (rather than seeking additional public comment on priorities that have already gone through rulemaking) allows the Department to award grants on a more efficient and timely basis. However, if in a future competition the Department decides to propose new selection criteria or revise the established selection criteria rather than select from among them, the Department would comply with all applicable rulemaking requirements.

Changes: None.

Comment: One commenter expressed concern that the proposed revision to the selection criteria would not simplify or improve the design of the program. The commenter further stated that the optional menu of EDGAR criteria suggests that the Department is unsure of the direction of the i3 program and suggested that applicants would prefer more predictability and responsiveness.

Discussion: Section 75.200 of EDGAR establishes that, to evaluate the applications for new grants, the Secretary may use: (i) The selection criteria established in § 75.209, (ii) the selection criteria in program-specific regulations, (iii) the selection criteria established under § 75.210, and (iv) any combination of criteria from (i) through (iii) of that section. We disagree that the proposed revision would not simplify or improve the design of the i3 program. We note that it is not unusual for Department programs to use the EDGAR selection criteria found in § 75.210 or developed under § 75.209 or to use different selection criteria in a given year. We believe that having greater flexibility to choose the selection criteria and the factors included in each criterion will allow the Department to simplify and better align the competition design and priorities for the three types of grants for a particular year's competition thereby resulting in projects that address the most pressing needs of the American educational system at that time.

Changes: None.

We received a number of comments on issues that were unrelated to the specific proposals in the 2011 Notice of Proposed i3 Revisions. These comments focused on the overall design of the i3 program. Although the Department previously addressed these issues in the 2009 i3 notice of proposed priorities, requirements, definitions, and selection criteria or in the 2010 i3 NFP, we want to be responsive and transparent in establishing rules under the i3 program and, therefore, are addressing these comments in this notice.

Comment: Three commenters provided recommendations on who may apply for and receive an i3 grant award. One commenter encouraged the Department to continue to allow nonprofit organizations in partnership with LEAs or schools to be eligible applicants. In contrast, another commenter recommended that the Department allow only LEAs to be eligible applicants for Development grants. Another commenter recommended that the Department allow for-profit organizations to be eligible applicants or official partners that may receive subgrants.

Discussion: Section 14007(a)(1) of the ARRA specifies the types of entities that are eligible to apply for funding under this program. Entities eligible for i3 grants are:

(a) An LEA

(b) A partnership between a nonprofit organization and—

(1) One or more LEAs; or

(2) A consortium of schools.

The Department has no authority to revise or expand these statutorily prescribed eligibility requirements.

Changes: None.

Comment: One commenter recommended that the Department redefine the role of the official partner, a term that is defined in the 2010 i3 NFP, so that schools without a track record of success can participate in future i3 projects.

Discussion: A low-performing LEA or school may participate in projects under this program as either an official partner (as defined in the 2010 i3 NFP) or other partner (as defined in the 2010 i3 NFP). While an LEA that applies for funds under section 14007(a)(1)(A) of the ARRA must meet the requirements in section 14007(b)(1) through (b)(3) of the ARRA, as amended by section 307 of Division D of the Consolidated Appropriations Act, 2010 (Pub. L. 111-117), nothing in the statute or the priorities, requirements, definitions, or selection criteria for this program prohibits such an eligible LEA from proposing a project that involves the LEA partnering with other partners, including other LEAs. Such other partners may be low-performing LEAs or schools. In addition, a partnership between a non-profit organization and one or more LEAs or a consortium of schools could include one or more LEAs, either as an official partner (as defined in the 2010 i3 NFP) or as an other partner (as defined in the 2010 i3 NFP) that does not meet the eligibility requirements. This is because such a partnership is deemed to have met the eligibility requirements in section 14007(b)(1) through (b)(3) of the ARRA if the nonprofit organization in the partnership satisfies the requirements in section 14007(c) of the ARRA.

Changes: None.

Comment: One commenter stated that the term “high-need student” should be deleted from the 2010 i3 NFP because the term is defined too broadly and does not focus solely on reducing the achievement gap among the subgroups of students specified in the Elementary and Secondary Education Act of 1965, as amended (ESEA) ( e.g., economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, and limited English proficient students).

Discussion: The 2010 i3 NFP established a requirement that all eligible applicants implement practices, strategies, or programs for high-need students. The 2010 i3 NFP also defined a high-need student as a student at risk of educational failure or otherwise in need of special assistance and support. This requirement and definition of high-need student were not within the scope of the 2011 Notice of Proposed i3 Revisions. However, as noted in the 2010 i3 NFP, we believe that this program's focus on funding projects that serve high-need students is consistent with the goal of this program, which is to improve student academic achievement and attainment. We believe that it is important to improve the academic achievement and attainment of any student at risk of educational failure. In addition, we note that the definition of high-need student included in the 2010 i3 NFP is appropriate because it also includes students who attend high-minority schools, who are far below grade level, who are over-age and under-credited, who have left school before receiving a regular high school diploma, who are at risk of not graduating with a regular high school diploma on time, who are homeless, who are in foster care, and who have been incarcerated. These students typically have very high needs, but are not included among the subgroups of students specified in the ESEA. Consequently, we do not believe the definition of high-need student in the 2010 i3 NFP is too broad.

Changes: None.

Comment: One commenter recommended that the Department set aside more funding for early-stage innovation or Development grants.

Discussion: As noted in the 2010 i3 NFP, the Department has found that the structure of this program and the use of three categories of grants appropriately balance support for the development of promising yet relatively untested ideas with the growth and scaling of practices that have made demonstrable improvements in student achievement and attainment outcomes. The Department will consider multiple factors, including the quality of the applications received and the amount of funds available for new grant awards in a given year, when determining the number of awards made under each type of grant.

Changes: None.

Comment: Two commenters opposed any additional funding for the Department's innovative discretionary grant programs. These commenters argued that formula grants are a more reliable stream of funding for LEAs and are particularly beneficial for small and rural LEAs that often lack the resources to compete for discretionary funds. Both commenters expressed concern with the Department's lack of emphasis on the needs of rural schools and one commenter recommended that a specific set-aside be available to rural States or LEAs that demonstrate innovative initiatives that are expressly applicable in rural settings.

Discussion: The Department understands and shares the commenters' concerns about the unique challenges of schools in rural LEAs. In the FY 2010 i3 competition, we addressed those challenges by providing up to two competitive preference priority points for innovations that are designed to focus on the unique challenges of high-needs students in schools in rural LEAs. The other competitive preference priorities were awarded only one point. As with all of the Department's competitions, we have learned from experience, and we understand that more needs to be done under the i3 program to adequately address the needs of rural States and LEAs. In future i3 competitions, we will increase our outreach efforts to rural applicants as well as our efforts to recruit peer reviewers who are from rural areas or who have other experience working in rural schools and communities. We also hope that the flexibility this notice establishes in terms of choosing selection criteria and factors will allow the Department to simplify the application, thus minimizing the burden on schools and LEAs with limited resources.

Changes: None.

Comment: One commenter expressed concern that the selection criterion on strategy and capacity to scale is an impediment to applicants from rural America because the criterion requires applicants to serve 100,000, 250,000, and 500,000 students with their proposed i3 projects. The commenter encouraged the Department to reward scale-up strategies that are appropriate to the project instead of rewarding applicants that propose to serve an arbitrary number of students.

Discussion: The i3 program does not include requirements for scaling proposed projects to a specific number of students. Under selection criterion E(4) of the 2010 i3 NFP, the Secretary considers cost estimates both— (a) for the total number of students to be served by the proposed project, which is determined by the eligible applicant, and (b) for the eligible applicant or others (including other partners) to reach the scaling targets for the respective grant types (100,000, 250,000, and 500,000 students for Development and Validation grants; and 100,000, 500,000, and 1,000,000 students for Scale-up grants). An eligible applicant is free to propose the number of students it will serve under its project, consistent with its project goals, capacity, and resources, and is expected to serve that number of students by the end of the grant period. The scaling targets, in contrast, are theoretical and allow peer reviewers to assess the general cost-effectiveness of proposed projects, whether implemented by the eligible applicant or by any other entity. Grantees are not required to reach these numbers during the grant period or to provide a plan to do so.

Changes: None.

Comment: One commenter recommended that the Department provide more emphasis on “social return on investment” than unit cost and scale numbers.

Discussion: The Department agrees that “social return on investment” would provide valuable information about a project's cost-effectiveness. However, the Department recognizes the challenges of calculating “social return on investment” and believes that requiring such a measure would increase the burden on applicants.

Changes: None.

Comment: One commenter encouraged the Department to allow applicants to modify existing practices, strategies, or programs as part of their plans to scale and sustain their proposed projects.

Discussion: As noted in the 2010 i3 NFP, evidence of the effectiveness of a proposed practice, strategy, or program will be stronger in terms of internal validity if the prior research applies to the same innovation the eligible applicant is proposing, rather than to a similar innovation or to a component of the proposed strategy or program. The 2010 i3 NFP does not prohibit applicants from proposing in their applications to modify an existing practice, strategy, or program as part of their plans to scale or sustain the project. However, modification and adaptation of existing, well-tested practices for new contexts may mean that strong evidence of effectiveness in the original context is only moderate evidence of effectiveness in the new context. To the extent possible, if an eligible applicant is proposing to modify or adapt an existing, well-tested practice, then it should provide a rationale for the proposed changes in its application and justify why those changes are desirable or necessary in order to improve the effectiveness of the project or to scale or sustain the project, and why the eligible applicant believes those changes would not invalidate the prior evidence of effectiveness.

Changes: None.

Comment: Some commenters submitted recommendations regarding the strong and moderate evidence requirements for the Scale-up and Validation grants. One commenter encouraged the Department to use the changes proposed in the 2011 Notice of Proposed i3 Revisions that provide for additional flexibility in using selection criteria in order to apply selection criteria that accurately reflect the state of research in the field of education.

Two commenters stated that the current evidence requirements established in the 2010 i3 NFP focus too heavily on experimental and quasi-experimental studies that are typically possible only for more mature organizations and recommended that the Department give more weight to publicly reported data. One commenter expressed concern that the current evidence requirements are overly restrictive and discourage LEAs from applying on their own because it is rare for an LEA to produce research evidence. The commenter recommended that the Department remove the moderate evidence requirement for Validation grants and instead require proposed projects to be supported by evidence of effectiveness ( e.g., school-based outcome data, student progress across performance levels, attainment of adequate yearly progress (AYP), gains exceeding comparable schools, subgroup progress, closing achievement gaps, graduation and dropout data, course completion, engagement indicators, teacher evaluation improvements, program evaluations). In contrast, another commenter encouraged the Department to retain the evidence definitions and requirements included in the 2010 i3 NFP and recommended that applications proposing evaluation plans that would get them to the next level of evidence receive additional points.

Discussion: The 2010 i3 NFP established standards of evidence for each type of grant under this program. Specifically, to be eligible for an award, an application for a Scale-up grant must be supported by strong evidence (as defined in the 2010 i3 NFP), an application for a Validation grant must be supported by moderate evidence (as defined in the 2010 i3 NFP), and an application for a Development grant must be supported by a reasonable hypothesis. The Department believes that, given the magnitude of public investment and the scale on which Scale-up and Validation grants will be implemented, the requirements for strong and moderate evidence are appropriate. Nothing would preclude an applicant from using publicly available data to meet the moderate and strong evidence requirements. The evidence standards requirement addresses the design of the study as opposed to the source of the data used by the study.

Regarding the comment that the Department provide additional points to applications proposing evaluation plans that would meet the next level of evidence, all applications in the FY 2010 i3 competition were judged in part on the quality of the eligible applicant's plan to evaluate its proposed project ( see Selection Criterion D (Quality of the Project Evaluation) of the 2010 i3 NFP). The Department believes that this selection criterion adequately rewards applications with well-designed evaluation plans.

Changes: None.

Comment: One commenter recommended that the Department add “intervention” and “service” to the list of “proposed practice, strategy, or program,” in every place where the list occurs in the i3 priorities and selection criteria. The commenter expressed concern that without these revisions applicants might assume that projects focused on interventions or services could not be funded under the i3 program.

Discussion: The Department understands that, in the context of the i3 program, a “practice, strategy, or program” includes an “intervention” or “service.”

Changes: None.

Comment: Two commenters requested clarification regarding the Department's policies on open educational resources and intellectual property.

Discussion: The Department's regulations on project materials and copyrightable intellectual property produced with grant funds apply to grants awarded under this program. Specifically, under 34 CFR 75.621, grantees may copyright project materials produced with Department grant funds. However, under 34 CFR 74.36 and 80.34, the Department retains a non-exclusive and irrevocable license to reproduce, publish, or otherwise use those project materials for government purposes.

Changes: None.

Comment: A few commenters requested that the Department provide additional information on the i3 application process, including the requirements for securing an independent evaluator and the assumptions under which the Department may standardize application scores. One commenter thanked the Department for its efforts to provide a transparent application process and noted areas where the process might be improved, including by streamlining the application and incorporating responses to frequently asked questions into future notices inviting applications for the i3 program. One commenter recommended the Department provide additional training as well as audits to ensure consistent scoring among reviewers.

Discussion: The Department maintains an i3 Web site that addresses many of the issues highlighted by the comments. The Department's i3 Web site is available at http://www2.ed.gov/programs/innovation/index.html.

Changes: None.

The Secretary may use any of the priorities established in the notice of final priorities, requirements, definitions, and selection criteria (2010 i3 NFP) that was published in the Federal Register on March 12, 2010 (75 FR 12004-12071) when establishing the priorities for a particular i3 competition. We may apply one or more of these priorities in any year in which this program is in effect.

The Secretary modifies the following requirements for the i3 program:

Limits on Grant Awards: (a) No grantee may receive more than two new grant awards of any type under the i3 program in a single year; (b) In any two-year period, no grantee may receive more than one new Scale-up or Validation grant; and (c) No grantee may receive more than $55 million in new grant awards under the i3 program in a single year.

Cost Sharing or Matching: To be eligible for an award, an eligible applicant must demonstrate that it has established one or more partnerships with an entity or organization in the private sector, which may include philanthropic organizations, and that the entity or organization in the private sector will provide matching funds in order to help bring project results to scale. An eligible applicant must obtain matching funds or in-kind donations equal to an amount that the Secretary will specify in the notice inviting applications for the specific i3 competition. Selected eligible applicants must submit evidence of the full amount of private-sector matching funds following the peer review of applications. An award will not be made unless the applicant provides adequate evidence that the full amount of the private-sector match has been committed or the Secretary approves the eligible applicant's request to reduce the matching-level requirement.

The Secretary may consider decreasing the matching requirement in the most exceptional circumstances, on a case-by-case basis. An eligible applicant that anticipates being unable to meet the full amount of the private-sector matching requirement must include in its application a request to the Secretary to reduce the matching-level requirement, along with a statement of the basis for the request.

The Secretary may use one or more of the selection criteria established in the 2010 i3 NFP, any of the selection criteria in 34 CFR 75.210, criteria based on the statutory requirements for the i3 program in accordance with 34 CFR 75.209, or any combination of these when establishing selection criteria for each particular type of grant (Scale-up, Validation, and Development) in an i3 competition. This includes the authority to reduce the number of selection criteria. In addition, within each criterion from these sources, the Secretary may further define each criterion by selecting one or more specific factors within a criterion or assigning factors from one criterion, from any of those sources, to another criterion, in any of those sources. The Secretary may apply one or more of these criteria in any year in which this program is in effect. The Secretary may also select one or more of these selection criteria to review pre-applications, if the Secretary decides to invite pre-applications in accordance with 34 CFR 75.103. In the notice inviting applications, the application package, or both, we would announce the maximum possible points assigned to each criterion.

Executive Order 12866: This notice has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this proposed regulatory action.

The potential costs associated with this final regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's discretionary grant programs effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of this final regulatory action, we have determined that the benefits of the proposed priorities and definitions justify the costs.

We have determined, also, that this final regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

We summarized the costs and benefits of this regulatory action in the 2011 Notice of Proposed i3 Revisions, published in the Federal Register on January 10, 2011 (76 FR1412-1415).

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or computer diskette) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: http://www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: http://www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

EPA Region III is publishing this direct final Notice of Deletion of the Coker's Sanitation Service Landfills Superfund Site from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action will be effective August 2, 2011 unless EPA receives adverse comments by July 5, 2011. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of the Federal Register . If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Coker's Sanitation Service Landfills Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) EPA consulted with the State of Delaware prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete the Site co-published today in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the State 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the State, through DNREC, has concurred on the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, the Delaware State News. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The Site (EPA Identification Number DED980704860) is located near Cheswold in Kent County, Delaware, approximately six miles northwest of the City of Dover. The Site consists of two landfills located approximately one-half mile apart on opposite sides of County Road 152. Landfill No. 1, which is on the north side of County Road 152, and Landfill No. 2, which is on the south side of County Road 152, are both part of larger, heavily wooded tracts of land. Both landfills are fenced off and covered with vegetation. There are no known development plans for the properties occupied by the landfills. Properties adjacent to both landfills are primarily used for agricultural or light residential development. Landfill No. 1 is bordered on the north by a forested wetland that includes a shallow meandering stream, the Willis Branch of the Leipsic River. Agricultural lands border the tree lines east and west of Landfill No. 2. Deer and other wildlife populate this area of Kent County. Groundwater near the Site is used for domestic purposes, including drinking water.

Landfill No. 1 is located on property owned by Alberta F. Schmidt. Use of Landfill No. 1 began in 1969 under a permit issued by the Delaware Water and Air Resources Commission. DNREC issued subsequent permits (1973-1976). The landfill was closed in 1977 in accordance with the Delaware Solid Waste Disposal Regulations of August 1974. During landfill operation, latex waste sludge was discharged into unlined trenches that were six to eight feet deep and twelve feet wide. Liquids were allowed to drain off as solids settled. Trenches were then backfilled with soil obtained locally.

Landfill No. 2, located on property owned by Kowinsky Farms, Inc., was operated from 1976 to 1980 under a state permit. The permit required each six-foot deep, twenty-eight foot wide, one hundred twenty-five foot long trench to have a synthetic liner. The permit also required leachate collection, installation of groundwater monitoring wells, regularly scheduled site inspections, and periodic groundwater and leachate monitoring. When the Site was closed in 1980, all trenches were capped with two feet of native soil. As waste settled and no longer generated collectable quantities of leachate, the leachate collection was phased out in the early 1980's.

EPA conducted an initial Site Investigation in 1980, and a second one in 1983. Elevated levels of acrolein were found in one well and in one leachate collection pipe on Landfill No. 2. Ethylbenzene was detected in the same well and leachate collection pipe. Bis(2-chloroethyl) ether was detected in Landfill No. 1 leachate seeps. The Site was proposed for inclusion on the NPL in the Federal Register on April 10, 1985 (50 FR 14115), and included on the NPL in the Federal Register on July 22, 1987 (52 FR 27620).

In April 1986, EPA issued letters to several Potentially Responsible Parties (PRPs) notifying them of their potential liability for Site response actions and inviting them to conduct the RI/FS. On December 30, 1987, three PRPs signed an agreement with EPA in the form of an Administrative Order on Consent to conduct the RI/FS.

Media investigation during the RI/FS included waste, leachate, groundwater, surface water and sediment, soil, and air. Among the different media types investigated, waste contained the highest number of contaminants at the highest levels for styrene, ethylbenzene, and phenolic compounds. Leachate from Landfill No. 2 (taken from leachate collection trenches within the lined cells) contained the same contaminants, but at lower levels. The waste and leachate were determined to pose a threat to human health and the environment. Groundwater at both landfills contained similar compounds but at significantly lower levels, and it was determined that they did not pose a threat to human health or the environment.

The FS provided an in-depth analysis of the following potential remedial alternatives: (1) No Action; (2) Monitoring; (3) Limited Action; (4) Soil Cap; (5) Multi-Layer Cap (both landfills) and Sub-drain (Landfill No. 1 only); (6) Volatile Organic Compound (VOC) Stripping by Aeration ; and (7) On-site Incineration (of Waste). The FS also analyzed EPA and DNREC's preferred alternative, alternative 3. The parties agreed, under a separate order, to remove drums containing varying quantities of latex waste found on-site during the RI.

EPA issued a Record of Decision (ROD) for the Site on September 28, 1990. Under the ROD, the remedial action objective was to reduce the potential for future contact with waste at the Site and thereby reduce risk to within EPA guidelines.

The waste materials found in the landfills at the Site are neither liquid nor highly mobile, and can be controlled reliably in place. The Site contains a large volume of material that would be difficult to handle and treat due to clay-like physical properties and the potential risk posed by substantial release of volatile organic compounds. EPA and DNREC determined that on-site containment of the waste was an appropriate remedial action.

The selected remedy addresses the principal threats posed by the conditions at the Site by reducing the potential for human exposure to wastes remaining at the Site. The major components of the selected remedy are as follows:

• Land use restrictions placed on both landfill properties.

• The entire waste disposal areas of both landfills are enclosed by a chain-link security fence with a locked gate to restrict the access of unauthorized persons and equipment onto the landfills. Appropriate warning signs are placed along the fence .

• Cover material was placed along the northern slope of Landfill No. 1 to eliminate exposure to leachate seeps.

• Areas of Landfill No. 2, which had subsided due to uneven settling of waste, were backfilled to grade and seeded.

• Leachate collection wells at Landfill No. 2 were sealed with grout to reduce the potential for direct contact with leachate.

• Groundwater was initially sampled semi-annually at both landfills; now, it is sampled at least once every five years.

• The landfills are inspected semi-annually.

• Surface water monitoring was conducted at the Willis Branch adjacent to

Landfill No. 1 at the same time as groundwater monitoring for a period of no less than five years. In response to monitoring requirements identified in the ROD, a groundwater and surface water monitoring program has been implemented at the Site. This monitoring program has included the identification of trigger levels for contaminants of concern for groundwater and surface water for both Landfill No.1 and Landfill No. 2. The trigger levels for Landfill No. 1 were developed primarily for the protection of aquatic wildlife due to the proximity of the Willis Branch and lack of potential human receptors. For Landfill No. 2, the trigger levels were developed to protect human health due to the proximity of nearby residential wells. Those levels are:

The following is a summary of the activities that were completed at the Site.

• An Environmental Protection Easement and Declaration of Restrictive Covenants between Alberta Schmidt, as Grantor, and DNREC, on behalf of the State of Delaware, as Grantee, relating to Landfill No. 1 was signed on February 24, 2005. The document was recorded with the Office of the Recorder of Deeds for Kent County, Delaware on April 18, 2005, to implement the institutional controls (land use restrictions) for Landfill No. 1.

• An Environmental Protection Easement and Declaration of Restrictive Covenants between Kowinsky Farms, Inc, as Grantor, and DNREC, on behalf of the State of Delaware, as Grantee, relating to Landfill No. 2 was signed on September 24, 2008. The document was recorded with the Office of the Recorder of Deeds for Kent County, Delaware on November 26, 2008, to implement the institutional controls (land use restrictions) for Landfill No. 2.

• On April 8, 1992, the PRPs entered into a Consent Decree with EPA pursuant to which the PRPs agreed to implement the remedy selected in the ROD. The PRPs started construction activities in early July 1993.

• Remedial construction activities at Landfill No.1 consisted of clearing the perimeter of vegetation so that the security fence could be installed. Leachate seeps were covered with wood chip mulch. Following installation of the security fence, cleared areas were seeded. Lastly, warning signs were posted around the landfill perimeter.

• At Landfill No. 2, remedial construction activities were more extensive. First, the landfill was cleared of all vegetation. Trees within the landfill perimeter were cut and chipped for mulch. Each waste cell's leachate collection system was grout sealed. Settled waste cells were filled with clean fill and the entire landfill surface was re-graded. Top soil was added; the landfill was then graded and seeded. A security fence was installed around the landfill. Finally, warning signs were placed around the landfill perimeter.

• Three wells were sampled at Landfill No. 1 and four at Landfill No. 2. The sampling parameters were ethylbenzene, styrene, 1,2,3-trichloropropane, antimony, and phenolics, as well as field parameters. Groundwater was sampled semi-annually in 1993 and 1994, and then annually through 1998. During this period, all sampling results for contaminants of concern were below established trigger levels for both Landfill No. 1 and Landfill No. 2, as well as Maximum Contaminant Levels (MCLs) established under the Safe Drinking Water Act. In 1999, EPA determined that the subject monitoring could be discontinued. In 2009, the monitoring resumed at a frequency of at least once every five years. Sampling in 2009 found that all contaminants of concern were below the established trigger levels and MCLs.

• The Site has been inspected regularly as required in the ROD and routine maintenance activities have been performed as needed. The routine maintenance activities have generally consisted of minor fence repair, replacement of warning signs, and mowing the surface of Landfill No. 2.

On September 9, 1993, EPA and DNREC conducted the final construction inspection. On September 29, 1993, EPA signed the Preliminary Site Close Out Report (PCOR), which documented that the PRPs had completed construction activities at the Site. EPA signed the Final Close Out Report on February 19, 2009, which documented completion of all response action, other than operation, maintenance, and five-year reviews.

EPA approved the Sampling and Analysis Plan (Part IV of the Remedial Design Submittal) requiring periodic sampling of groundwater, surface water and sediments. Sampling under the subject Plan was initiated at the start of remedial action (RA) activities and continued for six years. During that time, the monitored contaminants of concern at Landfill No.1 and Landfill No. 2 were well below identified trigger levels. In response to the results of this monitoring, the First Five-Year Review for the Site issued by EPA in 1999 found that monitoring of groundwater and surface water at the Site could be discontinued. However, during the preparation and completion of the Final Close Out Report for the Site in February 2009, EPA determined that monitoring should resume and be conducted at a minimum of once every five years because waste has been left in place at the Site.

The landfills are inspected semi-annually to identify any maintenance activities that need to be conducted to ensure continued performance of the RA. Inspection frequency was quarterly for the first year to provide for seep cover inspection and maintenance. The EPA-approved O&M Plan presented the requirements for the Site inspections, and included a checklist that was used to document inspection observations and results. O&M began following EPA's certification that the RA activities were completed. O&M activities that will continue at the Site are mowing and semi-annual inspections. Also, because waste remains onsite, groundwater and surface water monitoring will be performed once every five years.

An Environmental Protection Easement and Declaration of Restrictive Covenants between Alberta Schmidt, as Grantor, and DNREC, on behalf of the State of Delaware, as Grantee, relating to Landfill No.1 was signed on February 24, 2005. The document was recorded with the Office of the Recorder of Deeds for Kent County, Delaware on April 18, 2005, to implement the institutional controls for Landfill No. 1.

An Environmental Protection Easement and Declaration of Restrictive Covenants between Kowinsky Farms, Inc, as Grantor, and DNREC, on behalf of the State of Delaware, as Grantee, relating to Landfill No. 2 was signed on September 24, 2008. The document was recorded with the Office of the Recorder of Deeds for Kent County, Delaware on November 26, 2008, to implement institutional controls for Landfill No. 2.

The implemented institutional controls (land use restrictions) for both Landfill No. 1 and Landfill No. 2 prohibit disturbance of the onsite containment remedies.

EPA has conducted three (3) statutory Five-Year Reviews for this Site. Since the remedies selected for the Site allow hazardous substances, pollutants, or contaminants to remain onsite above levels that allow for unlimited use and unrestricted exposure, statutory Five-Year Reviews are required. These reviews are conducted pursuant to CERCLA Section 121(c), 42 U.S.C. 9621(c), and as provided in the current guidance on Five-Year Reviews.

The first Five-Year Review for the Site was completed on January 6, 1999, and the second Five-Year Review was completed on May 25, 2004. Both of these Five-Year Reviews found the remedy to be not fully protective due to the need for institutional controls in both cases.

The most recent Five-Year Review was completed on May 22, 2009. With the implementation of institutional controls, this Five-Year Review found no issues that affected the current or future protectiveness of the remedy for the Site and concluded that the remedy at the Site is protective over the short term and the long term.

The next Five-Year Review will be completed by May 25, 2014.

Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repositories.

Before the start of construction activities, representatives of the PRPs visited residents whose homes were adjacent to the landfills on both sides of County Road 152. Residents who were at home at the time of the visit were informed of the start date and the nature and duration of the construction activities. The PRP representatives answered questions that the residents asked about the construction activities. Fact sheets advising the residents of the construction activities were given to residents in person or were placed in their mailboxes. EPA issued a fact sheet in July 1993, at about midway through the construction activities. The fact sheet presented a description of the Site remedial action and project status.

EPA notified local officials about upcoming Five-Year Reviews. EPA placed notices in the Delaware State News to inform the public that the Five-Year Reviews were being conducted and when the findings of each would be available.

No further response action under CERCLA is appropriate. EPA has determined based on the investigations conducted that all appropriate response actions required have been implemented at the Site. Through the third Five-Year Review, EPA has also determined that the remedy is considered protective of human health and the environment and, therefore, additional remedial measures are not necessary. Other procedures required by 40 CFR 300.425(e) are detailed in Section III of this direct Final Notice of Deletion.

The EPA, with concurrence dated September 16, 2010, of the State of Delaware, through DNREC, has determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action noncontroversial and routine, EPA is taking it without prior publication. This action will be effective August 2, 2011 unless EPA receives adverse comments by July 5, 2011. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

I. Background

In FR Doc. 2011-10562 of May 6, 2011 (76 FR 26432) (hereinafter referred to as the RY 2012 IPF PPS final rule), there were two technical errors that we describe in the “Summary of Errors” section and correct in the “Correction of Errors” section below.

In the RY 2012 IPF PPS final rule, on page 26452, in Table 11, we made a typographical error when we listed the diagnosis code “V451” rather than “V4512” for the description of comorbidity for chronic renal failure. In addition, we inadvertently omitted from Table 11 the comorbidity code “V4511” for chronic renal failure. These changes are not substantive changes to the policies or payment methodologies in the final rule. They are changes to conform the final rule to reflect the correct policies, which were implemented on July 1, 2011.

In FR Doc. 2011-10562 of May 6, 2011 (76 FR 26432), make the following corrections:

• On page 26452, in Table 11—RY 2012 Diagnosis Codes and Adjustment Factors for Comorbidity Categories, in the second column, with the heading “Diagnoses codes,” for the renal failure, chronic diagnoses codes, replace code “V451” with “V4512” and add code “V4511.”

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons in the rule.

Section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of rules after the date of their publication in the Federal Register . This 30-day delay in the effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued. This notice merely corrects an error and omission in Table 11 of the RY 2012 IPF PPS final rule and does not make any substantive changes to the policies or payment methodologies. The correct policies were implemented on July 1, 2011. We are simply conforming the RY 2012 IPF PPS final rule to those policies by making the corrections identified herein. We believe that undertaking further notice and comment procedures to incorporate these corrections into the FY 2012 IPF PPS final rule and delaying the effective date of these changes is unnecessary. In addition, we believe it is important for the public to have the correct information as soon as possible, and believe it is contrary to the public interest to delay the dissemination of it. Therefore, we find there is good cause to waive notice and comment procedures and the 30-day delay in the effective date for this correction notice.

Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006).

The 2011 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2011. The General category season, which was open for the month of January 2011, resumes on June 1, 2011, and continues through December 31, 2011. Starting on June 1, the General category daily retention limit (§ 635.23(a)(2)), is scheduled to revert back to the default retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) per vessel per day/trip. This default retention limit applies to General category permitted vessels and HMS Charter/Headboat category permitted vessels (when fishing commercially for BFT). Each of the General category time periods (January, June-August, September, October-November, and December) is allocated a portion of the annual General category quota, thereby ensuring extended fishing opportunities in years when catch rates are high and quota is available. For the 2010 fishing year, NMFS adjusted the General category limit from the default level of one large medium or giant BFT as follows: two large medium or giant BFT for January (74 FR 68709, December 29, 2009), and three large medium or giant BFT for June through December (75 FR 30730, June 2, 2010; and 75 FR 51182, August 19, 2010). NMFS adjusted the January 2011 limit to two large medium or giant BFT (75 FR 79309, December 20, 2010).

The 2010 ICCAT recommendation regarding western BFT management resulted in a 2011 U.S. quota of 923.7 mt (not including a 25-mt allocation that the United States uses to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area (NED)). Consistent with the allocation scheme established in the Consolidated HMS FMP, the baseline General category share would be 435.1 mt, and the baseline June through August General category subquota would be 217.6 mt. In order to implement the ICCAT-recommended baseline annual U.S. BFT quota, NMFS published a proposed rule that would modify the U.S. BFT quota and base subquotas for all domestic fishing categories, and establish BFT quota specifications for 2011 (76 FR 13583, March 14, 2011). Until the final rule is effective (likely mid-June 2011), the BFT base quotas codified at § 635.27(a) remain in effect. The currently codified General category quota is 448.6 mt, and the currently codified June through August General category subquota is 224.3 mt.

Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of three per vessel based on consideration of the criteria provided under § 635.27(a)(8), which include: The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; effects of the adjustment on BFT rebuilding and overfishing; effects of the adjustment on accomplishing the objectives of the fishery management plan; variations in seasonal distribution, abundance, or migration patterns of BFT; effects of catch rates in one area precluding vessels in another area from having a reasonable opportunity to harvest a portion of the category's quota; and a review of dealer reports, daily landing trends, and the availability of the BFT on the fishing grounds.

NMFS has considered the set of criteria cited above and their applicability to the General category BFT retention limit for the June-August 2011 General category fishery. Based on General category landings rates during the June through August time-period over the last several years, it is highly unlikely that the June through August subquota will be filled with the default daily retention limit of one BFT per vessel. For example, under the three-fish limit that applied in June-August 2010, June-August landings were approximately 118 mt. This amount is less than both the 217.6 mt available under the 2010 ICCAT recommendation and the 224.3 mt available under the current regulations. NMFS expects landings from the General category in June through August 2011 to be within the available quota, once finalized. Furthermore, slow catch rates early in the season could result in unused quota being added to the later portion of the General category season. Increasing the daily retention limit from the default may mitigate rolling an excessive amount of unused quota from one time-period subquota to the next.

Based on considerations of the available quota, fishery performance in recent years, and the availability of BFT on the fishing grounds, NMFS has determined that the General category retention limit should be adjusted to allow for retention of the anticipated 2011 General category quota, and that the same approach used for June-August 2010 is warranted. Therefore, NMFS increases the General category retention limit from the default limit to three large medium or giant BFT, measuring 73 inches or greater, per vessel per day/trip, effective June 3, 2011, through August 31, 2011. Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the daily limit of three fish may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, and applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.

This adjustment is intended to provide a reasonable opportunity to harvest the U.S. quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities, to help achieve optimum yield in the General category BFT fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the Consolidated HMS FMP.

NMFS selected the daily retention limit for June-August 2011 after examining an array of data as it pertains to the determination criteria. These data included, but were not limited to, current and previous catch and effort rates in the BFT fisheries, quota availability, previous public comments on inseason management measures, and stock status, among other data. NMFS will continue to monitor the BFT fishery closely through the mandatory dealer landing reports, which NMFS requires to be submitted within 24 hours of a dealer receiving BFT. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas.

Closures or subsequent adjustments to the daily retention limits, if any, will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (888) 872-8862 or (978) 281-9260, or access http://www.hmspermits.gov, for updates on quota monitoring and retention limit adjustments.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the Consolidated HMS FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement these retention limits is impracticable as it would preclude NMFS from acting promptly to allow harvest of BFT that are available on the fishing grounds. Analysis of available data shows that the General category BFT retention limits may be increased with minimal risks of exceeding the ICCAT-allocated quota.

Delays in increasing these retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Limited opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen who depend upon catching the available quota within the time periods designated in the Consolidated HMS FMP. Adjustment of the retention limit needs to be effective June 1, 2011, or as soon as possible thereafter, to minimize any unnecessary disruption in fishing patterns and for the impacted sectors to benefit from the adjustments so as to not preclude fishing opportunities for fishermen who have access to the fishery only during this time period. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (i.e., the default General category retention limit is one fish per vessel per day/trip whereas this action increases that limit and allows retention of additional fish), there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866.