Unknown. Final rule

7,176 words·~33 min read·/register/2011/04/22/2011-9843

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2011-04-22.xml --- 76 78 Friday, April 22, 2011 Contents Agricultural Marketing Agricultural Marketing Service RULES Softwood Lumber Research, Promotion, Consumer Education and Industry Information Orders: Referendum Procedures, 22752-22756 2011-9394 PROPOSED RULES Softwood Lumber Research, Promotion, Consumer Education and Industry Information Orders: Referendum Order, 22757-22784 2011-9397 Agriculture Agriculture Department See Agricultural Marketing Service See Farm Service Agency See Food and Nutrition Service See Food Safety and Inspection Service See Forest Service See Rural Business-Cooperative Service See Rural Housing Service See Rural Utilities Service NOTICES Solicitation of Members to the National Agricultural Research, Extension, Education, and Economics Advisory Board, 22667 2011-9638 Air Force Air Force Department NOTICES Privacy Act;

Systems of Records, 22682-22684 2011-9754 Army Army Department NOTICES Environmental Impact Statements; Availability, etc.: Real Property Master Plan at Presidio of Monterey, CA, 22684-22685 2011-9680 Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Bureau of Ocean Energy Management, Regulation and Enforcement NOTICES Environmental Assessments; Availability, etc.: Cape Wind Energy Project, 22719-22720 2011-9779 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings:

Advisory Committee on HIV and STD Prevention and Treatment, 22708-22709 2011-9879 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22709 2011-9846 Medicare and Medicaid Programs: Approval of the American Association for Accreditation of Ambulatory Surgery Facilities, Inc. for Deeming Authority, etc., 22709-22711 2011-9176 Re-Approval of the American Society of Histocompatibility and Immunogenetics as an Accreditation Organization, 22711-22712 2011-8948 Children Children and Families Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Developmental Disabilities Annual Protection and Advocacy Systems Program Performance Report, 22713 2011-9772 Meetings: Advisory Committee on the Maternal, Infant and Early Childhood Home Visiting Program Evaluation, 22713-22714 2011-9756 Coast Guard Coast Guard NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22717-22719 2011-9738 Commerce Commerce Department See Foreign-Trade Zones Board See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration See Patent and Trademark Office Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;

Additions and Deletions, 22680 2011-9817 2011-9818 Comptroller Comptroller of the Currency PROPOSED RULES Retail Foreign Exchange Transactions, 22633-22648 2011-9821 Consumer Product Consumer Product Safety Commission RULES Third Party Testing for Certain Childrens Products; Clothing Textiles: Terms of Acceptance of Children's Product Certifications, 22608-22610 2011-9790 Copyright Office Copyright Office, Library of Congress NOTICES Cable Statutory License: Specialty Station List, 22733-22734 2011-9806 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 22680-22681 2011-9861 Defense Department Defense Department See Air Force Department See Army Department See Navy Department RULES Privacy Act; Implementation, 22611-22616 2011-9740 2011-9742 2011-9745 2011-9746 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Acquisition Regulation, 22708 2011-9761 Federal Acquisition Regulation; Affidavit of Individual Surety, 22706-22707 2011-9764 Federal Acquisition Regulation;

Duty-Free Entry, 22707 2011-9762 Presolicitation Notice and Response, 22706 2011-9759 Defense Logistics Agency Address Directory, 22681-22682 2011-9752 Privacy Act; Systems of Records, 22682 2011-9753 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 22685 2011-9833 Employee Benefits Employee Benefits Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

Alternative Method of Compliance for Certain SEPs, 22728-22729 2011-9837 Employment and Training Employment and Training Administration NOTICES Amended Certifications Regarding Eligibility to Apply for Worker Adjustment Assistance: Chrysler Group, LLC, Detroit, MI, 22729 2011-9840 Polaris Industries, Osceola, WI, 22729-22730 2011-9839 Determinations Regarding Eligibility to Apply for Worker Adjustment Assistance, 22730-22732 2011-9842 Investigations Regarding Certifications of Eligibility to Apply for Worker Adjustment Assistance, 22733 2011-9841 Energy Department Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Meetings:

Interagency Management Task Force, 22685-22686 2011-9830 Environmental Protection Environmental Protection Agency RULES Pesticide Tolerances: Triflusulfuron-methyl, 22620-22625 2011-9849 PROPOSED RULES Final Document Related to the Review of the National Ambient Air Quality Standards for Particulate Matter, 22665-22666 2011-9688 NOTICES Environmental Impact Statements; Availability, etc.: Weekly Receipt, 22699-22700 2011-9850 Farm Service Farm Service Agency PROPOSED RULES Community Facility Loans, 22631-22633 2011-9630 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 22700-22704 2011-9767 2011-9768 2011-9769 2011-9770 2011-9771 Radio Broadcasting Services: AM or FM Proposals to Change the Community of License, 22704 2011-9859 Federal Deposit Federal Deposit Insurance Corporation PROPOSED RULES Resolution Plans and Credit Exposure Reports Required, 22648-22662 2011-9357 NOTICES Updated Listing of Financial Institutions in Liquidation, 22704-22705 2011-9788 Federal Energy Federal Energy Regulatory Commission NOTICES Applications for Abandonment:

Colorado Interstate Gas Co., 22686 2011-9796 Combined Filings, 22686-22692 2011-9776 2011-9777 2011-9807 2011-9812 Environmental Assessments; Availability, etc.: Cape Canaveral Project, Florida Gas Transmission Co., LLC, 22692-22694 2011-9795 Filings: SP 49 Pipeline LLC, 22694-22695 2011-9794 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Phalanx Energy Services, LLC, 22695-22696 2011-9809 Wildcat Power Holdings, LLC, 22695 2011-9811 Yuba City Cogenerations Partners, LP, 22695 2011-9810 Motions to Withdraw Filings and Requests for Expedited Actions:

Missouri River Energy Services, et al., 22696 2011-9800 Petitions for Declaratory Orders: City of Redwood Falls, MN, 22696-22697 2011-9798 Midwest Independent Transmission System Operator, Inc., 22697 2011-9799 Preliminary Permit Applications: Arizona Independent Power, Inc., 22698 2011-9792 Requests Under Blanket Authorizations: Gulf South Pipeline Co., LP, 22698-22699 2011-9797 Staff Attendances: Southwest Power Pool Regional Entity Trustee, Regional State Committee and Board of Directors Meeting, 22699 2011-9808 Teleconferences:

Eagle Mountain Pumped Storage Hydroelectric Project; Eagle Crest Energy, 22699 2011-9793 Federal Mine Federal Mine Safety and Health Review Commission NOTICES Meetings; Sunshine Act, 22705 2011-9951 Federal Reserve Federal Reserve System PROPOSED RULES Resolution Plans and Credit Exposure Reports Required, 22648-22662 2011-9357 Supervisory Guidance to Savings and Loan Holding Companies, 22662-22665 2011-9588 NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 22705 2011-9787 Proposals to Engage in Permissible Nonbanking Activities or Acquire Companies Engaged in Permissible Nonbanking Activities, 22705 2011-9786 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Wildlife and Plants:

Draft Revised Recovery Plan for the Northern Spotted Owl; Appendix C, 22720-22721 2011-9864 Food and Drug Food and Drug Administration RULES Implantation or Injectable Dosage Form New Animal Drugs: Enrofloxacin, 22610-22611 2011-9765 NOTICES Withdrawal of Approval of New Animal Drug Applications: Phenylbutazone; Pyrantel; Tylosin; Sulfamethazine; Correction, 22713 2011-9778 Food and Nutrition Food and Nutrition Service RULES Child Nutrition Programs: Geographic Preference Option for the Procurement of Unprocessed Agricultural Products, 22603-22608 2011-9843 Food Safety Food Safety and Inspection Service NOTICES Salmonella Compliance Guide for Small and Very Small Meat and Poultry Establishments;

Availability, 22667-22668 2011-9856 Foreign Trade Foreign-Trade Zones Board NOTICES Grant of Authority for Subzone Status: Allegro Mfg. Inc., Commerce, CA, 22672-22673 2011-9853 Reorganizations under Alternative Site Framework: Foreign-Trade Zone 176, Rockford, IL, 22673 2011-9854 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: I-5 Corridor Fuels Reduction Project, Shasta-Trinity National Forest, CA, 22668-22670 2011-9871 Vestal Project, Black Hills National Forest, Hell Canyon Ranger District, SD, 22670-22671 2011-9743 Meetings:

Custer County Resource Advisory Committee, 22671 2011-9757 Lincoln County Resource Advisory Committee, 22671-22672 2011-9868 Nicolet Resource Advisory Committee, 22672 2011-9866 Shoshone Resource Advisory Committee, 22672 2011-9763 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Acquisition Regulation, 22708 2011-9761 Federal Acquisition Regulation; Affidavit of Individual Surety, 22706-22707 2011-9764 Federal Acquisition Regulation;

Duty-Free Entry, 22707 2011-9762 Presolicitation Notice and Response, 22706 2011-9759 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health Health Resources Health Resources and Services Administration NOTICES Meetings: Advisory Committee on the Maternal, Infant and Early Childhood Home Visiting Program Evaluation, 22713-22714 2011-9756 Homeland Homeland Security Department See Coast Guard See Transportation Security Administration Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 22719 2011-9506 Interior Interior Department See Bureau of Ocean Energy Management, Regulation and Enforcement See Fish and Wildlife Service See Land Management Bureau See Reclamation Bureau Internal Revenue Internal Revenue Service RULES Specified Tax Return Preparers Required To File Individual Income Tax Returns Using Magnetic Media;

Correction, 22611 2011-9737 International Trade Com International Trade Commission NOTICES Five-Year Reviews of Countervailing Duty Orders and Antidumping Duty Orders: Cut-to-Length Carbon Steel Plate from India, Indonesia, Italy, Japan, and Korea, 22725-22726 2011-9783 Investigations: Certain Multimedia Display and Navigation Devices and Systems, Components Thereof, etc., 22726-22728 2011-9784 Labor Department Labor Department See Employee Benefits Security Administration See Employment and Training Administration Land Land Management Bureau NOTICES Environmental Impact Statements;

Availability, etc.: Bighorn Basin Resource Management Plan Revision Project, Cody and Worland Field Offices, WY, 22721-22723 2011-9703 Meetings: Carrizo Plain National Monument Advisory Council, 22724 2011-9863 Pinedale Anticline Working Group, Wyoming, 22723 2011-9704 Library Library of Congress See Copyright Office, Library of Congress Mine Safety and Health Federal Review Commission See Federal Mine Safety and Health Review Commission NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Federal Acquisition Regulation, 22708 2011-9761 Federal Acquisition Regulation; Affidavit of Individual Surety, 22706-22707 2011-9764 Federal Acquisition Regulation; Duty-Free Entry, 22707 2011-9762 Presolicitation Notice and Response, 22706 2011-9759 National Institute National Institute of Standards and Technology NOTICES Meetings: Malcolm Baldrige National Quality Award Board of Overseers and Panel of Judges, 22674 2011-9873 Malcolm Baldrige National Quality Award Panel of Judges, 22675 2011-9855 Manufacturing Extension Partnership Advisory Board, 22674 2011-9880 Technology Innovation Program Advisory Board, 22673-22674 2011-9878 National Institute National Institutes of Health NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Health Information National Trends Survey 4, 22714-22715 2011-9827 Meetings: Center for Scientific Review, 22716 2011-9822 2011-9823 National Institute of Mental Health, 22717 2011-9816 National Institute on Alcohol Abuse and Alcoholism, 22715, 22717 2011-9814 2011-9815 2011-9825 National Institute on Drug Abuse, 22715-22716 2011-9824 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Foreign Fishing Vessel Permit Applications, 22676 2011-9780 Pacific Islands Region Permit Family of Forms, 22675-22676 2011-9781 Meetings: North Pacific Fishery Management Council, 22677 2011-9802 Pacific Fishery Management Council, 22676-22677 2011-9803 2011-9804 Permits: Endangered Species; File No. 14949, 22677-22678 2011-9852 National Science National Science Foundation NOTICES Meetings; Sunshine Act:, 22734 2011-9974 Navy Navy Department RULES Privacy Act;

Implementation, 22616-22617 2011-9749 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Environmental Impact Statements; Availability, etc.: Virgil C. Summer Nuclear Station, South Carolina Electric and Gas, 22734-22735 2011-9834 License Amendment Requests: Shaw Areva Mox Services, Mixed Oxide Fuel Fabrication Facility, 22735-22739 2011-9831 Patent Patent and Trademark Office NOTICES Trademark Trial and Appeal Board Participation in Settlement Discussions, 22678-22679 2011-9801 Postal Regulatory Postal Regulatory Commission RULES Product List Update, 22618-22620 2011-9782 NOTICES Postal Service Market Test, 22739-22740 2011-9819 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements;

Availability, etc.: San Joaquin River Restoration Program, California, 22724-22725 2011-9744 Rural Business Rural Business-Cooperative Service RULES Rural Energy for America Program; Webinars, 22608 2011-9725 PROPOSED RULES Community Facility Loans, 22631-22633 2011-9630 Rural Housing Service Rural Housing Service PROPOSED RULES Community Facility Loans, 22631-22633 2011-9630 Rural Utilities Rural Utilities Service PROPOSED RULES Community Facility Loans, 22631-22633 2011-9630 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 22740 2011-9775 Comment Request on Existing Private and Public Efforts to Educate Investors, 22740-22741 2011-9829 Self-Regulatory Organizations; Proposed Rule Changes: NASDAQ OMX PHLX LLC, 22741-22743 2011-9774 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Training Registration (For Non-U.S. Government Persons), 22744 2011-9857 Environmental Impact Statements; Availability, etc.:

TransCanada Keystone XL Pipeline Project, 22744-22745 2011-9858 Surface Transportation Surface Transportation Board NOTICES Acquisition and Operation Exemptions: Conecuh Valley Railway, LLC and Conecuh Valley Railroad Co., Inc., 22746-22747 2011-9813 Three Notch Railway, LLC, and Three Notch Railroad Co., Inc., 22745-22746 2011-9785 Wiregrass Central Railway, LLC and Wiregrass Central Railroad Co., Inc., 22746 2011-9832 Continuance in Control Exemptions: RailAmerica, Inc., et al., 22747-22748 2011-9789 Intra-Corporate Family Merger Exemptions:

Wisconsin Central Ltd., Duluth, Missabe and Iron Range Railway Co., and Duluth, Winnipeg and Pacific Railway Co., 22748-22749 2011-9820 Leases and Operation Exemptions: Camden and Southern Railroad, Inc., Camden Area Industrial Development Corp., 22749 2011-9791 Transportation Department Transportation Department See Surface Transportation Board See Transportation Security Administration Security Transportation Security Administration RULES Reporting of Security Issues, 22625-22630 2011-9629 Treasury Treasury Department See Comptroller of the Currency See Internal Revenue Service Separate Parts In This Issue Part II Agriculture Department, Agricultural Marketing Service, 22752-22784 2011-9394 2011-9397 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 78 Friday, April 22, 2011 Rules and Regulations DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 210, 215, 220, 225, and 226 RIN 0584-AE03 Geographic Preference Option for the Procurement of Unprocessed Agricultural Products in Child Nutrition Programs AGENCY:

Food and Nutrition Service, USDA. ACTION: Final rule. SUMMARY: The 2008 Farm Bill amended the Richard B. Russell National School Lunch Act to direct that the Secretary of Agriculture encourage institutions operating Child Nutrition Programs to purchase unprocessed locally grown and locally raised agricultural products. Effective October 1, 2008, institutions receiving funds through the Child Nutrition Programs may apply an optional geographic preference in the procurement of unprocessed locally grown or locally raised agricultural products.

This provision applies to institutions in all of the Child Nutrition Programs, including the National School Lunch Program, School Breakfast Program, Fresh Fruit and Vegetable Program, Special Milk Program for Children, Child and Adult Care Food Program and Summer Food Service Program, as well as to purchases made for these programs by the Department of Defense Fresh Program. The provision also applies to State agencies making purchases on behalf of any of the aforementioned Child Nutrition Programs.

The purpose of this rule is to finalize the geographic preference option in Child Nutrition Programs. DATES: This rule is effective May 23, 2011. FOR FURTHER INFORMATION CONTACT: Julie Brewer, Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia 22302, or by telephone at

(703)305-2590. SUPPLEMENTARY INFORMATION: Background Section 4302 of Public Law 110-246, the Food, Conservation, and Energy Act of 2008, amended section 9(j) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(j)) to require the Secretary of Agriculture to encourage institutions operating Child Nutrition Programs to purchase unprocessed locally grown and locally raised agricultural products. Pursuant to section 4407 of Public Law 110-246, beginning October 1, 2008, institutions receiving funds as participants in the Child Nutrition Programs may apply an optional geographic preference in the procurement of unprocessed locally grown or locally raised agricultural products. This provision applies to institutions operating all of the Child Nutrition Programs, including the National School Lunch Program, School Breakfast Program, Fresh Fruit and Vegetable Program, Special Milk Program, Child and Adult Care Food Program and Summer Food Service Program, as well as to purchases made for these programs by the Department of Defense Fresh Program. The provision does not apply to purchases made by the Department. However, the provision does also apply to State agencies making purchases on behalf of any of the aforementioned Child Nutrition Programs. The provisions were initially implemented through policy memoranda and explanatory question and answer communications dated January 9, 2009, July 22, 2009, and October 9, 2009. The Department published a proposed rule on April 19, 2010, at 75 FR 20316 to solicit comments on the incorporation of this procurement option in Child Nutrition Program regulations. The rule also served to define the term “unprocessed locally grown or locally raised agricultural products” to ensure that both the intent of Congress in providing for such a procurement option was met and that any such definition would facilitate ease of implementation for institutions participating in the Child Nutrition Programs. The comment period ended on June 18, 2010. The Department received 77 comments on the proposed rule. The following discussion provides information on the comments as well as a discussion of the clarifications and changes made to the proposal based on the comments received. General Comments In general, the comments received by the Department were very supportive of the regulation as proposed. Fifty-eight comments commended the Department for clarifying previous interpretations of the geographic preference option for procurement. Forty-four commentors stated that they believed the updated language of the rule more closely complied with the Congressional Conference Report language that indicated that there is no intent to preclude “de minimus handling and preparation such as necessary to present an agricultural product to a school food authority in a useable form.” Forty-seven comments supported the provision of the rule allowing the purchasing entity, such as local school food authorities, to determine the local area to which a geographic preference will be applied, indicating that they agreed with the Department's view that individual circumstances and product availability leads to the most successful local and regional procurement programs. Procurement Issues As indicated in the proposed rule, traditionally, a geographic preference established for procurements provides bidders located in a specified geographic area additional points or credit calculated during the evaluation of the proposals or bids received in response to a solicitation. A geographic preference is not a procurement set-aside for bidders located in the specified geographic area, guaranteeing them a certain level or percentage of business. In addition, including a geographic preference in a procurement does not preclude a bidder from outside the specified geographic area from competing for, and possibly being awarded, the contract subject to the geographic preference. Rather, a geographic preference is a tool that gives bidders in a specified geographic area a specific, defined advantage in the procurement process. We received a number of comments specifically requesting guidance on how to apply the geographic preference option in procurement specifications and procedures as well as questions on procurement processes in general. The Department published a policy memorandum for program cooperators on general procurement and geographic preference issues on February 1, 2011 and will be publishing additional guidance on procurement provisions associated with implementation of the geographic preference option included in this final rule as needed. Therefore, no changes have been made to the procurement-specific provisions included in the proposed rule and those procurement provisions are finalized as proposed. Geographic Area By utilizing the statutorily established geographic preference option in Child Nutrition Programs, purchasing institutions, such as States, school food authorities, child care institutions and Summer Food Service Program

(SFSP)sponsors, may specifically identify the geographic area within which unprocessed locally raised and locally grown agricultural products will originate. As indicated in the proposed rule, a responsive bidder would offer to provide unprocessed locally raised and locally grown agricultural products from the specifically identified geographic area. In most cases, we would expect that a bidder would be located in the identified geographic area, though it is possible for a responsive bidder to be located outside of that area. These procurements may be accomplished through informal or formal procurement procedures, as required by respective Child Nutrition Program regulations. The proposed rule provided for allowing institutions operating the Child Nutrition Programs to specifically define geographic areas from which they will seek to procure unprocessed local agricultural products. It was proposed that each institution, whether it be a school food authority, a child care institution or an SFSP sponsor, determine how to define the geographic area. As indicated previously, 47 comments supported allowing the purchasing entity to define the local area in which the geographic preference option will be applied. No objections to this provision were received, therefore it is finalized in this rule as proposed. One comment specifically recommended that the “Buy American” provisions of § 210.21 and § 220.16 of the National School Lunch Program and School Breakfast Program regulations be specifically noted in this amendment to those programs regulations. In response to that comment, the Department reiterates that all other regulatory requirements of the Child Nutrition Programs must be complied with when implementing the geographic preference option. When specifying the local area from which items will be purchased using the geographic procurement option, purchasing entities must ensure that the “Buy American” requirements of the regulations are complied with and included in the procurement specifications. No change, however, has been made in the regulatory language of this final rule. Definition of Unprocessed Agricultural Products As provided in the Joint Explanatory Statement of the Committee of Conference in House Report 110-627, the term “unprocessed” precludes the use of geographic preference in procuring agricultural products that have significant value added components. The Conference report also noted the acceptability of *de minimus* handling and preparation “such as may be necessary to present an agricultural product to a school food authority in a useable form, such as washing vegetables, bagging greens, butchering livestock and poultry, pasteurizing milk, and putting eggs in a carton.” For the purpose of implementing the geographic preference procurement option in the Child Nutrition Programs, the Department proposed a definition of “unprocessed agricultural products.” The guiding principles in developing the definition were that the definition should:

(1)Comply with the language and reflect the intent of the statute;

(2)Ensure that any processing of agricultural products results in only minimal value added to such products; and

(3)Facilitate ease of use of such products for institutions. The definition of “unprocessed agricultural products” included in the proposed rule specifically prohibited any processing method that alters the inherent character of the agricultural product. To that end, we included in the proposed definition a list of acceptable food handling and preservation techniques for purposes of applying the geographic preference procurement option. Such techniques included: General heat transfer methods such as cooling, refrigerating and freezing; size adjustment through size reduction (peeling, slicing, dicing, cutting and grinding); drying/dehydration; washing; vacuum packing and bagging; pasteurization for milk; the application of high water pressure (“cold pasteurization”); butchering of livestock and poultry and the cleaning of fish. The Department asserted that these handling and preservation techniques both complied with the intent of the statute and did not alter the inherent character of agricultural products subjected to them. While two commentors supported the definition as proposed, a number of comments regarding the food handling and preservation techniques included in the definition were received. The following discussion outlines those comments by issue and the decisions made by the Department in response to the comments in this final rule. Combination Packages of Vegetables and Fruits Fifty comments were received expressing support for the addition of combination packages of local, frozen, bagged vegetables such as zucchini and summer squash or fresh vegetable roast packages such as winter squash, turnips and beets. The commentors indicated that the “inherent character” of the vegetables is not being altered in any way when packaged in such a manner and fits within the “de minimus” handling and preparation requirements intended by Congress. In addition, such packaging conforms with the language of the statute with regard to presenting the product in usable form. The Department agrees with the comments and, therefore, has revised the definition of “unprocessed agricultural products” to include such combination packaged items in this final rule. Frozen Products One commentor indicated that frozen products should be included in the definition. The proposed rule included frozen products and the final rule retains frozen products as acceptable as a preservation technique. Two comments were received requesting that, in order to ensure that flash frozen products are included in the definition, the Department specify Individually Quick Frozen

(IQF)as an acceptable preservation technique. The final rule retains inclusion of frozen products as acceptable but the Department does not wish to include specific techniques for freezing since technology changes over time and such specific references to technique may necessitate future amendments to the regulation in response to changes in technology. Canned and Other Heat Preserved Products Three comments were received requesting that canned products be included in the definition of “unprocessed agricultural products.” One commentor wanted to allow pasteurized cider and pickled products to be considered “unprocessed” for purposes of specifying a geographic preference for procurement. While canned, pickled and pasteurized products are acceptable for service in the Child Nutrition Programs, such products would not be considered to be subject to a geographic procurement preference because heat processing does not meet the “de minimus” standard of processing established by Congress as assessed by the Department. Therefore, no change in this regulation has been made in response to these comments. Formed Products Fifty comments were received supporting allowing foods such as ground beef and other meat patties to be included in the definition of “unprocessed agricultural products”. Those comments assert that such products have been handled in a manner consistent with “de minimus” exceptions in that they are ground then formed similar to cutting carrots into sticks or coin shapes. The commentors indicated that contracting separately for further processing of ground meat products which does not change the inherent character of that product would be costly and time consuming for the purchasing entities. Five other commentors recommended allowing meat patties made with pure meat and containing no fillers or additives as meeting the criteria for geographic preference procurement. The Department agrees with these commentors and has revised the definition to include formed products that contain no additives or fillers as acceptable for purchase using the geographic preference procurement option. Other Products Forty-one comments were received recommending that cutting chicken or other meat into fajita strips and filleting fish be allowed as acceptable as meeting the definition of “unprocessed agricultural products”. The Department wishes to point out that fish filets would be considered to be “cleaned” and cut, and slicing products into strips would be considered to be “cut”, both of which are included in the definition as proposed. One commentor requested that ground flour be allowed to be considered as acceptable. The Department wishes to clarify that ground products are allowed and that the grinding of grain into flour would be considered to be acceptable as a ground product subject to the geographic preference procurement option. Therefore, there is no change to the definition in response to these comments. Preservatives Forty-six comments were received requesting clarification as to whether or not preservatives were allowed in products subject to the geographic preference procurement option. Specifically, they requested clarification as to whether or not ascorbic acid to hold color or prevent oxidation once a fruit or vegetable product was cut or chopped was acceptable. The Department agrees that this should be addressed and has provided for the addition of ascorbic acid and/or other preservatives that retain the color of a product or prevent oxidation to the definition of “unprocessed agricultural products”. However, no other preservatives used for any other purpose are considered to be acceptable. Packaging One commentor requested that portion packaging be explicitly recognized as meeting the requirements of the rule. The Department wishes to point out that packaging is recognized as allowable with regard to the definition of “unprocessed agricultural products”. The size of such packaging included in the procurement specifications is made at the discretion of the purchasing entity. Therefore, no change in response to this comment has been made in this final rule. High Water Pressure Cold Pasteurization One commentor expressed concern that the term “high water pressure cold pasteurization” included in the definition of “unprocessed agricultural product” could be interpreted to mean irradiation. The Department's intent was to use this term in the definition to reference a washing technique. Since “washing” is already included in the definition of “unprocessed locally grown or locally raised agricultural products” and in response to this comment, the term “high water pressure (cold pasteurization)” is removed from the definition. This final rule prohibits the application of the geographic preference procurement option for products subjected to processing methods not included in the definition of “unprocessed agricultural products”. This final rule adds new paragraphs to §§ 210.21, 215.14a, 220.16, 225.17 and 226.22 of Title 7, CFR, to include the geographic preference procurement option and define the term “unprocessed locally grown or locally raised agricultural products”. Applicability to the Fresh Fruit and Vegetable Program The geographic preference procurement option is applicable to purchases made in the Fresh Fruit and Vegetable Program, 42 U.S.C. 1769a (FFVP). However, this provision shall only be applied within the context of the FFVP's requirement that produce utilized in the program be fresh. The definition of “unprocessed locally grown or locally raised agricultural products” does not change the basic statutory requirement that only fresh produce may be purchased using funds for the Fresh Fruit and Vegetable Program. Development of regulations pertaining to the requirements for the Fresh Fruit and Vegetable Program are currently in process and the provisions relating to the geographic preference procurement option will be included in that proposed rule, as appropriate. Executive Order 12866 This rule has been determined to be not significant and was not reviewed by the Office Management and Budget in conformance with Executive Order 12866. Regulatory Flexibility Act This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). It has been certified that this rule will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the Department generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) that impose costs on State, local, or Tribal governments or to the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA. Executive Order 12372 The National School Lunch Program and the School Breakfast Program are listed in the Catalog of Federal Domestic Assistance under No. 10.555 and 10.553, respectively. The Special Milk Program is listed under No. 10.556. The Child and Adult Care Food Program is listed under No. 10.558 and the Summer Food Service Program for Children is listed under No. 10.559. For the reasons set forth in the final rule in 7 CFR Part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), these programs are included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials. Executive Order 13132 Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. The Food and Nutrition Service

(FNS)has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a federalism summary impact statement is not required. Executive Order 12988 This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless specified in the DATES section of the final rule. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. Civil Rights Impact Analysis FNS has reviewed this rule in accordance with Departmental Regulations 4300-4, “Civil Rights Impact Analysis,” and 1512-1, “Regulatory Decision Making Requirements.” After a careful review of the rule's intent and provisions, FNS has determined that this rule is not intended to limit or reduce in any way the ability of protected classes of individuals to receive benefits on the basis of their race, color, national origin, sex, age or disability nor is it intended to have a differential impact on minority owned or operated business establishments, and woman- owned or operated business establishments that participate in the Child Nutrition Programs. This rule simply allows institutions that participate in the Child Nutrition Programs the option to apply a geographic preference should such institutions wish to procure unprocessed locally grown or locally raised agricultural products. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget

(OMB)approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule does not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995. E-Government Act Compliance The Food and Nutrition Service 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. Executive Order 13175 E.O. 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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. In late 2010 and early 2011, USDA engaged in a series of consultative sessions to obtain input by Tribal officials or their designees concerning the impact of this rule on the Tribe or Indian Tribal governments, or whether this rule may preempt Tribal law. Reports from these consultations will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal officials or their designees concerning ways to improve this rule in Indian country. We are unaware of any current Tribal laws that could be in conflict with this final rule. List of Subjects 7 CFR Part 210 Grant programs—education, Grant programs—health, Infants and children, Nutrition, Penalties, Reporting and recordkeeping requirements, School breakfast and lunch programs, Surplus agricultural commodities. 7 CFR Part 215 Food assistance programs, Grant programs—education, Grant programs—health, Infants and children, Milk, Reporting and recordkeeping requirements. 7 CFR Part 220 Grant programs—education, Grant programs—health, Infants and children, Nutrition, Reporting and recordkeeping requirements, School breakfast and lunch programs. 7 CFR Part 225 Food assistance programs, Grant programs—health, Infants and children, Labeling, Reporting and recordkeeping requirements. 7 CFR Part 226 Accounting, Aged, Day care, Food assistance programs, Grant programs, Grant programs—health, Indians, Individuals with disabilities, Infants and children, Intergovernmental relations, Loan programs, Reporting and recordkeeping requirements, Surplus agricultural commodities. Accordingly, 7 CFR Parts 210, 215, 220, 225, and 226 are amended as follows: PART 210—NATIONAL SCHOOL LUNCH PROGRAM 1. The authority citation for 7 CFR Part 210 continues to read as follows: Authority: 42 U.S.C. 1751-1760, 1779. Subpart E—State Agency and School Food Authority Responsibilities 2. In § 210.21, paragraph

(g)is added to read as follows: § 210.21 Procurement.

(g)*Geographic preference.*

(1)A school food authority participating in the Program, as well as State agencies making purchases on behalf of such school food authorities, may apply a geographic preference when procuring unprocessed locally grown or locally raised agricultural products. When utilizing the geographic preference to procure such products, the school food authority making the purchase or the State agency making purchases on behalf of such school food authorities have the discretion to determine the local area to which the geographic preference option will be applied;

(2)For the purpose of applying the optional geographic procurement preference in paragraph (g)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); the addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk. PART 215—SPECIAL MILK PROGRAM FOR CHILDREN 3. The authority citation for 7 CFR Part 215 continues to read as follows: Authority: 42 U.S.C. 1772 and 1779. 4. In § 215.14a, paragraph

(e)is added to read as follows: § 215.14a Procurement standards.

(e)*Geographic preference.* A school food authority participating in the Program may apply a geographic preference when procuring milk. When utilizing the geographic preference to procure milk, the school food authority making the purchase has the discretion to determine the local area to which the geographic preference option will be applied. PART 220—SCHOOL BREAKFAST PROGRAM 5. The authority citation for 7 CFR Part 220 continues to read as follows: Authority: 42 U.S.C. 1773, 1779, unless otherwise noted. 6. In § 220.16, paragraph

(f)is added to read as follows: § 220.16 Procurement.

(f)*Geographic preference.*

(1)School food authorities participating in the Program, as well as State agencies making purchases on behalf of such school food authorities, may apply a geographic preference when procuring unprocessed locally grown or locally raised agricultural products. When utilizing the geographic preference to procure such products, the school food authority making the purchase or the State agency making purchases on behalf of such school food authorities have the discretion to determine the local area to which the geographic preference option will be applied;

(2)For the purpose of applying the optional geographic preference in paragraph (f)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk. PART 225—SUMMER FOOD SERVICE PROGRAM 7. The authority citation for 7 CFR Part 225 continues to read as follows: Authority: Secs. 9, 13 and 14, Richard B. Russell National School Lunch Act, as amended, (42 U.S.C. 1758, 1761 and 1762a). 8. In § 225.17, paragraph

(e)is added to read as follows: § 225.17 Procurement standards.

(e)*Geographic preference.*

(1)Sponsors participating in the Program may apply a geographic preference when procuring unprocessed locally grown or locally raised agricultural products. When utilizing the geographic preference to procure such products, the sponsor making the purchase has the discretion to determine the local area to which the geographic preference option will be applied;

(2)For the purpose of applying the optional geographic preference in paragraph (e)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk. PART 226—CHILD AND ADULT CARE FOOD PROGRAM 9. The authority citation for 7 CFR Part 226 continues to read as follows: Authority: Secs. 9, 11, 14, 16, 17, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766). 10. In § 226.22, paragraph

(n)is added to read as follows: § 226.22 Procurement standards.

(n)*Geographic preference.*

(1)Institutions participating in the Program may apply a geographic preference when procuring unprocessed locally grown or locally raised agricultural products. When utilizing the geographic preference to procure such products, the institution making the purchase has the discretion to determine the local area to which the geographic preference option will be applied;

(2)For the purpose of applying the optional geographic preference in paragraph (n)(1) of this section, “unprocessed locally grown or locally raised agricultural products” means only those agricultural products that retain their inherent character. The effects of the following food handling and preservation techniques shall not be considered as changing an agricultural product into a product of a different kind or character: Cooling; refrigerating; freezing; size adjustment made by peeling, slicing, dicing, cutting, chopping, shucking, and grinding; forming ground products into patties without any additives or fillers; drying/dehydration; washing; packaging (such as placing eggs in cartons), vacuum packing and bagging (such as placing vegetables in bags or combining two or more types of vegetables or fruits in a single package); addition of ascorbic acid or other preservatives to prevent oxidation of produce; butchering livestock and poultry; cleaning fish; and the pasteurization of milk. Dated: April 18, 2011. Audrey Rowe, Administrator, Food and Nutrition Service. [FR Doc. 2011-9843 Filed 4-21-11; 8:45 am]

Connectionstraces to 9

Traces to 9 documents

U.S. Code