Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2011-04-12.xml --- 76 70 Tuesday, April 12, 2011 Contents Agricultural Marketing Agricultural Marketing Service RULES Perishable Agricultural Commodities Act: Impact of Post-Default Agreements on Trust Protection Eligibility, 20217-20220 2011-8718 Agriculture Agriculture Department See Agricultural Marketing Service See Food Safety and Inspection Service See Foreign Agricultural Service See Forest Service See Rural Utilities Service NOTICES Domestic Cane Sugar Allotments and FY 2011 Increases in Raw Sugar Tariff-rate Quota, 20305 2011-8570 Air Force Air Force Department NOTICES Privacy Act;

Systems of Records, 20343-20345 2011-8641 Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Bureau of Ocean Energy Management, Regulation and Enforcement NOTICES Commercial Leasing for Wind Power on the Outer Continental Shelf Off Delaware: Determination of No Competitive Interest, 20367-20368 2011-8341 Centers Disease Centers for Disease Control and Prevention NOTICES Affordable Care Act Funding, 20352-20353 2011-8653 Agency Information Collection Activities;

Proposals, Submissions, and Approvals:, 20353-20354 2011-8650 Intent to Award Supplemental Affordable Care Act Funding, 20354 2011-8651 Meetings: Advisory Committee to the Director, 20354-20355 2011-8657 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 20355-20356 2011-8658 2011-8659 2011-8654 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20356-20357 2011-8663 2011-8666 Coast Guard Coast Guard PROPOSED RULES Anchorage Grounds and Regulated Navigation Areas:

Superfund Site, New Bedford Harbor, New Bedford, MA, 20287-20290 2011-8518 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Copyright Office Copyright Office, Library of Congress NOTICES Section 302 Report, 20373-20374 2011-8730 Corporation Corporation for National and Community Service RULES Retired and Senior Volunteer Program Amendments, 20243-20248 2011-8556 Defense Department Defense Department See Air Force Department See Navy Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Federal Acquisition Regulations; Architect-Engineer Qualifications, 20351-20352 2011-8646 Meetings: Advisory Council on Dependents' Education; Cancellation, 20335 2011-8634 Board of Regents of Uniformed Services University of Health Sciences, 20337-20338 2011-8676 Defense Audit Advisory Committee, 20336 2011-8636 Defense Intelligence Agency Advisory Board, 20338-20339 2011-8638 Federal Advisory Committee, 20336-20337 2011-8724 Strategic Environmental Research and Development Program Scientific Advisory Board, 20335-20336 2011-8635 Privacy Act;

Systems of Records, 20339-20342 2011-8639 2011-8640 Renewal of Department of Defense Federal Advisory Committees, 20342-20343 2011-8637 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20346-20347 2011-8721 Energy Department Energy Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20347 2011-8707 Environmental Protection Environmental Protection Agency RULES Approvals and Promulgations of Air Quality Implementation Plans:

District of Columbia; Section 110(a)(2) Infrastructure Requirements, etc., 20237-20239 2011-8567 Approvals and Promulgations of Implementation Plans: Florida; Prevention of Significant Deterioration, 20239-20242 2011-8701 Revisions to California State Implementation Plan: Sacramento Metropolitan Air Quality Management District, 20242-20243 2011-8466 PROPOSED RULES Approvals and Promulgations of Implementation Plans and Designations of Areas for Air Quality Planning Purposes: Alabama, Birmingham;

Determination of Attaining Data for 1997 Annual Fine Particulate Matter Standards, 20291-20293 2011-8702 Charlotte-Gastonia-Rock Hill, NC and SC; Determination of Attainment for 1997 8-Hour Ozone Standards, 20293-20296 2011-8705 Approvals and Promulgations of Implementation Plans: Florida; Prevention of Significant Deterioration, 20296-20297 2011-8700 NOTICES Draft Integrated Review Plan for the National Ambient Air Quality Standards for Lead, 20347-20349 2011-8706 Peer Review Workshops:

Draft Toxicological Review of Hexavalent Chromium, 20349-20350 2011-8708 Executive Office of the President See Presidential Documents See Science and Technology Policy Office Farm Credit Farm Credit Administration NOTICES Meetings; Sunshine Act, 20350 2011-8783 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Honeywell International Inc. LTS101 Series Turboshaft Engines and LTP101 Series Turboprop Engines, 20231-20232 2011-8470 Rolls-Royce plc RB211-Trent 768-60 and Trent 772-60 Turbofan Engines, 20229-20231 2011-8469 Revocation of Class E Airspace:

Kutztown, PA, 20233 2011-8538 PROPOSED RULES Amendment of Class E Airspace: Madison, SD, 20279-20280 2011-8615 Establishment of Class E Airspace: Campbellton, TX, 20280-20281 2011-8613 Modifications of Class E Airspace: Newcastle, WY, 20281-20282 2011-8743 NOTICES Environmental Assessments; Availability, etc.: New Land-based Airport in Akutan, AK, Proposed Changes to Construction, 20435-20436 2011-8529 Meetings: Joint RTCA Special Committee 213; EUROCAE WG-79; Enhanced Flight Vision Systems/Synthetic Vision Systems, 20437 2011-8740 RTCA Special Committee 223, Airport Surface Wireless Communications, 20436 2011-8611 Federal Communications Federal Communications Commission RULES Television Broadcasting Services:

Decatur, IL, 20248-20249 2011-8753 Update Station License Expiration Dates, 20249 2011-8752 PROPOSED RULES Twenty-First Century Communications and Video Accessibility Act of 2010: Implementing the Provisions of the Communications Act of 1934, 20297-20298 2011-8751 Federal Deposit Federal Deposit Insurance Corporation NOTICES Meetings: FDIC Advisory Committee on Community Banking, 20350 2011-8674 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices: Acquisitions of Shares of a Bank or Bank Holding Company, 20351 2011-8661 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 20350-20351 2011-8662 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings;

Sunshine Act, 20351 2011-8989 Federal Trade Federal Trade Commission RULES Appliance Labeling, 20233-20237 2011-8689 Financial Financial Crimes Enforcement Network NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Renewal Without Change of Registration of Money Services Business, 20451-20452 2011-8589 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants Endangered Status for the Three Forks and San Bernardino Springsnail, 20464-20488 2011-8176 NOTICES Environmental Impact Statements;

Availability, etc.: Llano Seco Riparian Sanctuary Unit Restoration and Pumping Plant/Fish Screen Facility Protection Project, CA, 20368-20369 2011-8664 Food and Drug Food and Drug Administration NOTICES Determinations; Not Withdrawn from Sale for Reasons of Safety or Effectiveness: KEFLEX (Cephalexin) Capsule, Equivalent to 333 Milligrams Base, 20357-20358 2011-8617 Food Safety Food Safety and Inspection Service RULES New Formulas for Calculating Basetime, Overtime, Holiday, and Laboratory Services Rates:

Rate Changes Based on Formulas, and Increased Fees for Accredited Laboratory Program, 20220-20229 2011-8699 Foreign Agricultural Foreign Agricultural Service NOTICES Applications for Available Funding: McGovern-Dole International Food for Education and Child Nutrition Programs Micronutrient-Fortified Food Aid Products Pilot; Correction, 20305 2011-8584 Ellimination of Use of Child Labor and Forced Labor in Imported Agricultural Products, 20305-20309 2011-8587 Foreign Assets Foreign Assets Control Office NOTICES Unblocking of Specially Designated Nationals and Blocked Persons, 20452-20453 2011-8678 Forest Forest Service NOTICES Meetings:

Ketchikan Resource Advisory Committee, 20310 2011-8672 Snohomish County Resource Advisory Committee, 20310-20311 2011-8647 Tehama County Resource Advisory Committee, 20310 2011-8671 Tuolumne-Mariposa Counties Resource Advisory Committee, 20309-20310 2011-8645 Uinta-Wasatch-Cache National Forest Resource Advisory Committee, 20310 2011-8655 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Acquisition Regulations;

Architect-Engineer Qualifications, 20351-20352 2011-8646 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard See U.S. Citizenship and Immigration Services See U.S. Customs and Border Protection Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Interstate Land Sales Full Disclosure Requirements, 20365 2011-8601 Technical Assistance for Community Planning and Development Programs, 20364-20365 2011-8596 Use Restriction Agreement Monitoring and Compliance, 20365-20366 2011-8598 Changes to Public Housing Assessment System: Management Operations Scoring; Correction, 20366-20367 2011-8597 Indian Affairs Indian Affairs Bureau PROPOSED RULES Meetings: No Child Left Behind School Facilities and Construction Negotiated Rulemaking Committee, 20287 2011-8649 Interior Interior Department See Bureau of Ocean Energy Management, Regulation and Enforcement See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 20453-20458 2011-8669 International Trade Adm International Trade Administration NOTICES Antidumping and Countervailing Duty Sunset Reviews; Preliminary and Final Results: Fresh and Chilled Atlantic Salmon from Norway; Extension, 20312 2011-8735 Antidumping Duty Administrative Reviews; Preliminary Results: Certain Pasta from Turkey; Extension, 20312-20313 2011-8566 Purified Carboxymethylcellulose from Mexico, 20313-20317 2011-8741 Antidumping Duty New Shipper Reviews;

Final Rescissions: Diamond Sawblades and Parts Thereof from People's Republic of China, 20317-20318 2011-8742 Initiation and Preliminary Results of Changed Circumstances Reviews: Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 20318-20320 2011-8733 Renewable Energy and Energy Efficiency Executive Business Development Mission, 20320-20323 2011-8715 Justice Department Justice Department NOTICES Lodging of Consent Decrees, 20371-20372 2011-8709 Lodging of Consent Decrees and Settlement Agreements:

Natural Resource Damage Claims Between Debtors, United States of America, State of Indiana, et al., 20372 2011-8619 Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Employee Retirement Income Security Act Prohibited Transaction Exemption 98-54, etc., 20372-20373 2011-8618 Land Land Management Bureau NOTICES Coal Exploration License Applications MTM 101687 and MTM 101688, 20369-20370 2011-8685 Environmental Impact Statements;

Availability, etc.: Proposed Normally Pressured Lance Natural Gas Development Project, Sublette County, WY, 20370-20371 2011-8687 Library Library of Congress See Copyright Office, Library of Congress NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Acquisition Regulations; Architect-Engineer Qualifications, 20351-20352 2011-8646 National Foundation National Foundation on the Arts and the Humanities NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 20375 2011-8629 Meetings: Humanities Panel, 20375-20376 2011-8677 2011-8686 National Highway National Highway Traffic Safety Administration RULES Federal Motor Vehicle Theft Prevention Standard: Final Listing of 2012 Light Duty Truck Lines Subject to Requirements and Exempted Vehicle Lines, 20251-20257 2011-8744 PROPOSED RULES Insurer Reporting Requirements: List of Insurers Required to File Reports, 20298-20301 2011-8729 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Reports, Forms, and Recordkeeping Requirements, 20437-20438 2011-8739 2011-8746 Proposed Model Performance Measures for State Traffic Records Systems, 20438-20448 2011-8738 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 20359 2011-8605 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 20358-20359 2011-8609 National Cancer Institute, 20360 2011-8713 National Heart, Lung, and Blood Institute, 20358 2011-8610 National Institute of Allergy and Infectious Diseases, 20360 2011-8716 National Institute of Diabetes and Digestive and Kidney Diseases, 20359-20360 2011-8717 National Institute of Diabetes and Digestive and Kidney Diseases Diabetes Mellitus Interagency Coordinating Committee;

Workshop, 20358 2011-8612 National Institute on Aging, 20360-20361 2011-8714 National Oceanic National Oceanic and Atmospheric Administration RULES Taking and Importing Marine Mammals: Keyport Range Complex, U.S. Navy Research, Development, Test, and Evaluation Activities, 20257-20278 2011-8573 PROPOSED RULES Listing Endangered and Threatened Species: 90-Day Finding on a Petition to List Chinook Salmon, 20302-20304 2011-8736 NOTICES Meetings: Hydrographic Services Review Panel, 20323-20324 2011-8728 Monterey Bay National Marine Sanctuary Advisory Council;

Availability of Seats, 20324 2011-8614 Permits; Issuances: Endangered Species; File No. 15606, 20324-20325 2011-8593 Takes of Marine Mammals Incidental to Specified Activities: Marine Geophysical Survey in Pacific Ocean off Costa Rica, April through June, 2011, 20325-20335 2011-8734 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Education and Human Resources, 20376 2011-8723 Navy Navy Department NOTICES Government-Owned Inventions; Available for Licensing, 20345-20346 2011-8665 Meetings:

Chief of Naval Operations Executive Panel, 20346 2011-8660 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Applications and Amendments to Facility Operating Licenses Involving Proposed No Significant Hazards Considerations, etc., 20377-20385 2011-8453 Meetings; Sunshine Act, 20385 2011-8893 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Volunteer Week (Proc. 8649), 20215-20216 2011-8837 Rural Utilities Rural Utilities Service NOTICES Environmental Assessments;

Availability, etc.: Basin Electric Power Coop.; Public Scoping Meetings, 20311-20312 2011-8719 Science Technology Science and Technology Policy Office NOTICES Meetings: President's Council of Advisors on Science and Technology, 20385-20386 2011-8750 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20386-20388 2011-8578 2011-8579 2011-8580 Applications: Russell Investment Co., et al., 20388-20389 2011-8577 Self-Regulatory Organizations;

Proposed Rule Changes: BATS Exchange, Inc., 20414-20416, 20424-20425 2011-8599 2011-8628 BATS Y-Exchange, Inc., 20430-20431 2011-8684 Chicago Board Options Exchange, Inc., 20389-20393, 20406-20407, 20411-20412 2011-8620 2011-8621 2011-8622 2011-8631 2011-8656 Chicago Stock Exchange, Inc., 20393-20394 2011-8623 EDGA Exchange, Inc., 20394-20396 2011-8624 EDGX Exchange, Inc., 20417-20418 2011-8625 International Securities Exchange, LLC, 20431-20433 2011-8683 NASDAQ OMX BX, Inc., 20426-20428 2011-8582 NASDAQ Stock Market LLC, 20407-20409, 20420-20422 2011-8627 2011-8633 National Securities Clearing Corp., 20425-20426 2011-8585 National Stock Exchange, Inc., 20409-20410, 20412-20414 2011-8630 2011-8632 NYSE Amex LLC, 20418-20420, 20428-20429 2011-8581 2011-8626 NYSE Arca, Inc., 20396-20406, 20422-20424 2011-8600 2011-8725 2011-8726 2011-8732 Suspension of Trading Orders:

MaxLife Fund Corp., 20433 2011-8811 Small Business Small Business Administration NOTICES Disaster Declarations: California, 20433 2011-8608 Tennessee; Amendment 1, 20433 2011-8607 Social Social Security Administration PROPOSED RULES How We Collect and Consider Evidence of Disability, 20282-20287 2011-8388 State Department State Department RULES Acquisition Regulation, 20249-20251 2011-8720 NOTICES Delegation of the Authorities of the Assistant Secretary of State for Administration to William H.

Moser, 20433-20434 2011-8540 Determinations under Section 602(q) of Foreign Assistance Act of 1961 as Amended: Assistance to Antigua and Barbuda, 20434 2011-8722 Tennessee Tennessee Valley Authority NOTICES Meetings; Sunshine Act, 20434 2011-8810 Thrift Supervision Thrift Supervision Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Amendment of a Federal Savings Association Charter, 20460-20461 2011-8594 Mutual Holding Company, 20458-20459 2011-8591 Mutual to Stock Conversion Application, 20459 2011-8602 Savings and Loan Holding Company Application, 20459-20460 2011-8603 Transportation Department Transportation Department See Federal Aviation Administration See National Highway Traffic Safety Administration NOTICES Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits, 20434-20435 2011-8696 2011-8697 2011-8698 Treasury Treasury Department See Financial Crimes Enforcement Network See Foreign Assets Control Office See Internal Revenue Service See Thrift Supervision Office NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 20448-20450 2011-8569 2011-8586 2011-8675 Designation of Nine Individuals Pursuant to Executive Order 13566, 20450-20451 2011-8755 Unblocking of Specially Designated Nationals and Blocked Persons Pursuant to Executive Order 13566, 20451 2011-8754 U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 20361-20363 2011-8679 2011-8681 2011-8682 Customs U.S.

Customs and Border Protection NOTICES Accreditation and Approval as a Commercial Gauger and Laboratory: Atlantic Product Services, Inc., 20363 2011-8688 Camin Cargo Control, Inc., 20363 2011-8680 Oiltest, Inc., 20364 2011-8691 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 20464-20488 2011-8176 Reader Aids Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 76 70 Tuesday, April 12, 2011 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Document Number AMS-FV-09-0047] 7 CFR Part 46 Perishable Agricultural Commodities Act: Impact of Post-Default Agreements on Trust Protection Eligibility AGENCY:

Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture

(USDA)is amending the regulations under the Perishable Agricultural Commodities Act

(PACA)to allow, if there is a default in payment as defined in the regulations, a seller, supplier, or agent who has met the PACA trust eligibility requirements to enter into a scheduled agreement for payment of the past due amount without foregoing its trust eligibility. USDA is also amending 7 CFR 46.46(e)(2) by adding the words “prior to the transaction.” This change clarifies that the 30-day maximum time period for payment to which a seller can agree and still qualify for coverage under the trust refers to pre-transaction agreements. DATES: *Effective Date:* April 13, 2011. FOR FURTHER INFORMATION CONTACT: Phyllis L. Hall or Josephine E. Jenkins, Trade Practices Section, 202-720-6873. SUPPLEMENTARY INFORMATION: Background of PACA Trust Provisions Under the 1984 amendment, perishable agricultural commodities, inventories of food or other derivative products, and any receivables or proceeds from the sale of such commodities or products, are to be held in a non-segregated floating trust for the benefit of unpaid sellers. This trust is created by operation of law upon the purchase of such goods, and the produce buyer is the statutory trustee for the benefit of the produce seller. To preserve its trust benefits, the unpaid supplier, seller, or agent must give the buyer written notice of intent to preserve its rights under the trust within 30 calendar days after payment was due. Alternatively, as provided in the 1995 amendments to the PACA, a PACA licensee may provide notice of intent to preserve its trust rights by including specific language as part of its ordinary and usual billing or invoice statements. The trust is a non-segregated “floating trust” made up of all of a buyer's commodity-related assets, under which there may be a commingling of trust assets. As each supplier gives ownership, possession, or control of perishable agricultural commodities to a buyer, and preserves its trust rights, that supplier becomes a participant in the trust. Thus, trust participants remain trust beneficiaries until they have been paid in full. Under current 7 CFR 46.46(e)(2), only transactions with payment terms of 30 days from receipt and acceptance, or less, are eligible for trust protection. Section 46.46(e)(1) of the regulations (7 CFR 46.46(e)(1)) requires that any payment terms beyond “prompt” payment as defined by the regulations, usually 10 days after receipt and acceptance in a customary purchase and sale transaction, must be expressly agreed to, and reduced to writing, before entering into the transaction. A copy of the agreement must be retained in the files of each party and the payment due date must be disclosed on the invoice or billing statement. Over the past few years, several federal courts have invalidated the trust rights of unpaid creditors because these creditors agreed in writing, and in some cases, by oral agreement, after default on payment, to accept payments over time from financially troubled buyers. In general, these courts have invalidated the seller's previously perfected trust rights because the agreements were deemed to extend payment terms beyond 30 days. 1 1 See, *Paris Foods Corp.* v. *Foresite Foods, Inc.,* No. 1:05-cv-610-WSD, 2007 WL 568841 (N.D. Ga. Feb. 20, 2007); *Bocchi Americas Assoc.* v. *Commerce Fresh Mktg., Inc.,* No. Civ. A. H0402411, 2005 WL 3164240 (S.D. Tex. Nov. 28, 2005); *American Banana* Co. v. *Republic Nat. Bank of N.Y.,* 362 F.3d 33 (2nd Cir. 2004); *Patterson Frozen Foods, Inc.* v. *Crown Foods, Int'l,* 307 F.3d 666, 667 (7th Cir. 2002); *Greg Orchards Produce, Inc.* v. *P. Roncone J.,* 180 F.3d 888, 892 (7th Cir. 1999); *Idahoan Fresh* v. *Advantage Produce, Inc.,* 157F.3d 197, 205 (3d Cir. 1998); *In re Lombardo Fruit and Produce Co.,* 12 F.3d 806, 809 (8th Cir. 1993); and *Hull* v. *Hauser's Foods, Inc.,* 924 F.2d 777, 781-82 (8th Cir. 1991). The court decisions at issue have held that any post-default agreement, whether oral or written, that extends the buyer's obligation to pay the seller's invoices beyond 30 days after receipt and acceptance of the produce abrogates the produce seller's PACA trust rights. These decisions have held that

(1)when a seller enters into the post-default agreement, the agreement modifies any valid payment agreement entered into prior to the transaction and therefore voids the trust protection, 2 and

(2)post-default agreements that allow for installment payments exceeding 30 days from receipt of produce violate the PACA prompt-pay provisions. 3 2 *See American Banana Co.,* 362 F.3d at 33; *Patterson Frozen Foods,* 307 F.3d at 669. 3 *American Banana Co.,* 362 F.3d at 46. Many of the court decisions at issue have been based on an interpretation of § 46.46(e) of the regulations (7 CFR 46.46(e)). Section 46.46(e)(1) (7 CFR 46.46(e)(1)) requires that parties who elect to use different times for payment must reduce their agreement to writing before entering into the transaction. Current § 46.46(e)(2) (7 CFR 46.46(e)(2)) states that the maximum time for payment for a shipment to which a seller can agree and still qualify for coverage under the trust is 30 days after receipt and acceptance of the commodities. It is our interpretation that § 46.46(e)(2), like paragraph (e)(1) of the regulations (7 CFR 46.46(e)(1) and (e)(2)), addresses pre-transaction agreements only. This interpretation of our regulations is consistent with the Secretary's unwillingness to impute a waiver of trust rights as illustrated in the policies established by the Secretary and upheld by the courts in the context of the trust provisions of the Packers and Stockyards Act (7 U.S.C. 181 *et seq.* ), after which the PACA trust provisions are largely modeled. 4 In the context of the PACA trust, the right to make a claim against the trust are vested in the seller, supplier, or agent who has met the eligibility requirements of paragraphs (e)(1) and

(2)of § 46.46 (7 CFR 46.46(e)(1) and (2)). The seller, supplier, or agent remains a beneficiary of the PACA trust until the debt owed is paid in full as stated in section 5(c)(4) of the statute. An agreement to pay the antecedent debt in installments is not considered payment in full. Thus, we do not believe that a post-default payment agreement should constitute a waiver of a seller's previously perfected trust rights. 4 *See, e.g., In re Gotham Provision Co., Inc.,* 669 F.2d 1000, 1007 (5th Cir. 1982). Notice of Proposed Rulemaking In response to the Fruit and Vegetable Advisory Committee's request that the Secretary of Agriculture address the impact of post-default payment agreement on PACA trust eligibility, a proposed rule to amend PACA regulations was published in the **Federal Register** on June 8, 2010, [75 FR 32306]. 5 The proposal sought to amend Title 7, Part 46 to ensure that qualified PACA trust beneficiaries maintain their trust protection after entering into a post-default agreement. The comment period initially closed on August 9, 2010. However, the comment period was reopened and extended an additional 30 days. The reopening of the comment period was published in the **Federal Register** on August 23, 2010, [75 FR 51693]. The comment period closed a second time on September 22, 2010. 5 To view the proposed rule and the comments we received, go to *http:/www.regulations/gov.* The proposal sought to amend 7 CFR 46.46(e)(2) by adding the words “prior to the transaction.” This change would clarify that the 30-day maximum time period for payment for a shipment to which a seller can agree and still qualify for coverage under the trust relates back to paragraph (e)(1) which refers to pre-transaction agreements. The proposal also added a new paragraph (e)(3) to 7 CFR 46.46. The new paragraph provided that in circumstances of a default in payment as defined in § 46.46(a)(3), a seller, supplier, or agent who has met the eligibility requirements of § 46.46 paragraphs (e)(1) and

(2)could agree in writing to a schedule for payment of the past due amount and still remain eligible under the trust. The post-default payment agreement could not extend beyond 180 days from the default date. Comments AMS received 130 timely comments. The commenters substantially approved of the proposed rule, except in regard to the limits on the length of post-default payment agreements and on collection activities. They expressed concerns that the suggested wording in the proposed regulation may itself create the same confusion, uncertainty, and need for costly litigation that the new regulation aims to eliminate. Eighty-nine of the 130 commenters offered alternative language for the amendment, four of which included the rationale for the suggested alternative language. These 89 commenters favored the removal of the requirement of a written post-default agreement and recommended the deletion of the last three sentences of § 46.46(e)(3) of the proposed rule which

(1)set a 180-day limitation on post-default agreements,

(2)limited collection activities in cases of bankruptcy and civil actions, and 3) stated that the remaining unpaid amount under the scheduled payment agreement continued to qualify for trust protection. Twenty-three of the 130 comments raised legitimate concerns about the proposed changes to the regulations, stating: 1. It is contrary to the law—only full payment ends a supplier's trust rights. The commenters suggested that the proposed rule conflicts with the statutory language that a trust creditor remains eligible for trust benefits until it has received full payment. 2. The regulation cements a post-default waiver rule in the regulations. The commenters reason that if the Secretary acknowledges in the regulations that some post-default agreements can forfeit trust rights, this could be interpreted by the courts to prohibit all post-transaction agreements. 3. The proposed regulation will result in more problems than currently exist. The comments noted that there is no problem in the industry with post-default agreements to collect trust assets outside of litigation, so, no regulatory action is required over such agreements. 4. Routine past due collection efforts will jeopardize trust rights. The language in the proposed rule would necessitate that every time there is a past due debt, sellers will have to consult a PACA lawyer. 5. All claims in trust cases would be subject to extensive litigation about post-default collection efforts. Commenters noted that initially, produce suppliers try to resolve past due payments over the phone, thus, under the proposed rule, every subsequent trust claim will be the subject of the same expensive litigation to determine if there was a forfeiture due to an oral post default agreement. We recognize the serious nature of the concerns the comments raise: That the proposed regulation, as written, is contrary to the plain language of the statute that trust creditors remain eligible until fully paid; that the proposed regulation could be interpreted broadly to prohibit all post-transaction agreements; that it creates new problems; that routine collection activities could jeopardize trust rights and give rise to extensive litigation. Because we agree with these comments, we are revising the regulation. Twenty-eight of the 130 commenters specifically requested that the 180-day cap for post-default payment plans be stricken from the proposed rule, indicating that it may be unrealistic under a multitude of circumstances, and that the time limitation would create new challenges to the trust eligibility of a creditor who attempts to collect on a past due debt. We agree. In addition, we agree that Congress intended that the seller, supplier, or agent remains a beneficiary of the PACA trust until the debt owed is paid and, recognizing that a 180-day limitation would create a new time limitation and new opportunity for litigation and misinterpretation of the regulations. Therefore, we are removing the 180-day limitation of post default agreements from the final rule. Commenters noted that initially, produce suppliers try to resolve past due payments over the phone, thus, under the proposed rule, every subsequent trust claim will be the subject of the same expensive litigation to determine if there was a forfeiture due to an oral post default agreement. Because we agree with the comments that it is typical for produce suppliers to attempt to resolve past due payments over the telephone and, a requirement for a written post-default agreement would be burdensome and unnecessary, we are removing the requirement that a post-default agreement must be in writing from the final rule. It is our interpretation of the statute and regulations that post-default agreements are not an extension of the 30-day maximum time period for pre-transaction agreements that would result in a waiver of the seller's trust rights; post-default payment agreements are an attempt to collect a debt that remains due until fully paid. The Secretary has long recognized a significant difference between the relative positions of buyers and sellers before a transaction, versus their positions after a buyer defaults on payment. The Secretary has observed that “produce sellers are not in an equal bargaining position with produce purchasers who are in possession of the produce seller's perishable agricultural commodities.” 6 After a buyer has defaulted on payment, the seller is at the buyer's mercy since produce deteriorates rapidly, leaving no collateral. Any agreement reached after default is not an arm's length transaction. The trust is intended to provide protection to the unpaid seller whose bargaining position has changed for the worse after delivering its produce to a buyer. We do not believe that a seller's perfected trust rights should be lost because the seller enters into a payment arrangement, in an attempt to collect a debt, after the buyer has violated the PACA's prompt payment requirement. 6 *See In re: Scamcorp, Inc.,* 57 Agric. Dec. 527, 563 (1998). We also agree with the comments from a California law firm that specializes in PACA law regarding the proposal to limit collection activities in cases of bankruptcy and civil actions. The commenter reminded us that limits on collection activities in cases of bankruptcy and civil actions are “already amply controlled under existing laws and procedures administered by the United States district and bankruptcy courts* * *.” Because laws already exist to ensure that a buyer in bankruptcy and civil actions cannot continue to make preferential payments to select creditors, we are eliminating the third and fourth sentences in § 46.46, paragraph (e)(3) of the final rule. One commenter, a New Jersey based attorney specializing in PACA, recommended that the Secretary withdraw the proposed new regulation and solicit further suggestions for alternate language. USDA opted not to implement this recommendation. This commenter also included a suggestion for changes to § 46.46 (c)(1), § 46.2(aa)(11). The commenter suggested a new paragraph in § 46.46 to address payment terms with a debtor who has entered into a post-default agreement. We do not adopt the suggestion, as it presents significant problems of implementation and interpretation by bringing separate, subsequent transactions into the analysis. USDA also opted not to adopt this suggestion because it is beyond the scope of the proposed rule. The courts have expressed concern that post-default agreements could undermine the enforcement of the prompt pay provisions of the PACA. No commenters echoed the courts' concerns. When a buyer defaults on payment for produce, it has committed a violation of section 2(4) of the PACA (7 U.S.C. 499b(4)). The defaulting buyer's license is then subject to suspension or revocation, or the buyer may be assessed a civil penalty for its violations of the PACA. Allowing a seller who has perfected its trust rights to enter into a post-default payment agreement with the defaulting buyer does not negate the buyer's violations of the Act. The trust is a means to protect the seller's right to payment for produce, not to enforce the prompt payment provisions of the Act. The Secretary can still initiate an enforcement action against the buyer to seek the appropriate sanction for violations of the Act without regard to any post-default agreement entered into between the unpaid seller and the buyer in default. Based on full consideration of comments received during the initial and reopened comment periods, USDA has determined that it is appropriate to simplify the language of the final rule in order to avoid creating any additional confusion, uncertainty, and unnecessarily protracted, costly litigation about post-default agreements and collection efforts. New § 46.46(3) will be amended to delete the last three sentences of the proposal, and permit post-default agreements made in any manner. Furthermore, accepting partial payments after default would not affect a seller's trust rights. No comments addressed the proposal to amend § 46.46(e)(2) by adding the words “prior to the transaction.” This change would clarify that the 30-day maximum time period for payment for a shipment to which a seller can agree and still qualify for coverage under the trust relates back to paragraph (e)(1) which refers to pre-transaction agreements. Therefore, this change is finalized as proposed. Executive Orders 12866 and 12988 This final rule has been determined to be not significant for the purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget. This final rule has been reviewed under Executive Order 12988, Civil Justice Reform, and is not intended to have retroactive effect. This final rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this final rule. Effects on Small Businesses Pursuant to requirements set forth in the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq.* ), USDA has considered the economic impact of this final rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The Small Business Administration

(SBA)has defined small agricultural service firms (13 CFR 121.601) as those whose annual receipts are less than $7,000,000. There are approximately 14,400 firms licensed under the PACA, a majority of which could be classified as small entities. The final regulations would clarify that a trust beneficiary who has perfected its trust rights does not forfeit those rights by entering into a post-default agreement to accept partial or installment payments on the amount past due. This language would provide companies of all sizes with clear regulatory guidance on this matter, thereby reducing the time and expense associated with litigating matters involving post-default agreements and trust right preservation under the PACA. Therefore, we believe that this final rule will not have a significant economic impact on a substantial number of small entities. Paperwork Reduction Act In accordance with OMB regulations (5 CFR part 1320) that implement the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are covered by this final rule are currently approved under OMB number 0581-0031. E-Government Act Compliance USDA is committed to complying with the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. Forms are available on our PACA Web site at *http://www.ams.usda.gov/paca* and can be printed, completed, and faxed. Currently, forms are transmitted by fax machine, postal delivery and can be accepted by e-mail. List of Subjects in 7 CFR Part 46 Agricultural commodities, Definitions, Accounts and records, Duties of licensees, Statutory trust. For the reasons set forth in the preamble, 7 CFR part 46 is amended as follows: PART 46—[AMENDED] 1. The authority citation for part 46 continues to read as follows: Authority: 7 U.S.C. 499a-499t. 2. In § 46.46, paragraph (e)(2) is revised, paragraphs (e)(3) and

(4)are redesignated as paragraphs (e)(4) and (5), and a new paragraph (e)(3) is added as follows: § 46.46 Statutory trust.

(e)* * *

(2)The maximum time for payment for a shipment to which a seller, supplier, or agent can agree, prior to the transaction, and still be eligible for benefits under the trust is 30 days after receipt and acceptance of the commodities as defined in § 46.2(dd) and paragraph (a)(1) of this section.

(3)If there is a default in payment as defined in § 46.46(a)(3), the seller, supplier, or agent who has met the eligibility requirements of paragraphs (e)(1) and

(2)of this section will not forfeit eligibility under the trust by agreeing in any manner to a schedule for payment of the past due amount or by accepting a partial payment. Dated: April 5, 2011. Ellen King, Acting Administrator, Agricultural Marketing Service. [FR Doc. 2011-8718 Filed 4-11-11; 8:45 am]

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