[Federal Register Volume 77, Number 225 (Wednesday, November 21, 2012)]
[Notices]
[Pages 69827-69837]
[FR Doc No: 2012-28330]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9753-9]

Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) or Superfund; Notice of Grant Funding Guidance for State
and Tribal Response Programs for FY2013

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) will begin to accept
requests, from December 1, 2012 through January 31, 2013, for grants to
supplement State and Tribal Response Programs. This notice provides
guidance on eligibility for funding, use of funding, grant mechanisms
and process for awarding funding, the allocation system for
distribution of funding, and terms and reporting under these grants.
EPA has consulted with state and tribal officials in developing this
guidance.
    The primary goal of this funding is to ensure that state and tribal
response programs include, or are taking reasonable steps to include,
certain elements and a public record. Another goal is to provide
funding for other activities that increase the number of response
actions conducted or overseen by a state or tribal response program.
This funding is not intended to supplant

current state or tribal funding for their response programs. Instead,
it is to supplement their funding to increase their response capacity.
    For fiscal year 2013, EPA will consider funding requests up to a
maximum of $1.1 million per state or tribe. Subject to the availability
of funds, EPA regional personnel will be available to provide technical
assistance to states and tribes as they apply for and carry out these
grants.

DATES: This action is effective as of December 1, 2012. EPA expects to
make non-competitive grant awards to states and tribes which apply
during fiscal year 2013.

ADDRESSES: Mailing addresses for EPA Regional Offices and EPA
Headquarters can be located at www.epa.gov/brownfields and at the end
of this Notice.

FOR FURTHER INFORMATION CONTACT: EPA's Office of Solid Waste and
Emergency Response, Office of Brownfields and Land Revitalization,
(202) 566-2892 or the applicable EPA Regional Office listed at the end
this Notice.

SUPPLEMENTARY INFORMATION:

I. General Information

    Section 128(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended, authorizes a
noncompetitive $50 million grant program to establish and enhance state
\1\ and tribal \2\ response programs. CERCLA 128(a) response program
grants are funded with categorical \3\ State and Tribal Assistance
Grant (STAG) appropriations. Section 128(a) cooperative agreements are
awarded and administered by the EPA regional offices. Generally, these
response programs address the assessment, cleanup, and redevelopment of
brownfields sites and other sites with actual or perceived
contamination. This document provides guidance that will enable states
and tribes to apply for and use Fiscal Year 2013 section 128(a)
funds.\4\
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    \1\ The term ``state'' is defined in this document as defined in
CERCLA section 101(27).
    \2\ The term ``Indian tribe'' is defined in this document as it
is defined in CERCLA section 101(36). Intertribal consortia, as
defined in the Federal Register Notice at 67 FR 67181, Nov. 4, 2002,
are also eligible for funding under CERCLA section 128(a).
    \3\ Categorical grants are issued by the U.S. Congress to fund
state and local governments for narrowly defined purposes.
    \4\ The Agency may waive any provision of this guidance that is
not required by statute, regulation, Executive Order or overriding
Agency policies.
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    The Catalogue of Federal Domestic Assistance entry for the section
128(a) State and Tribal Response Program cooperative agreements is
66.817. This grant program is eligible to be included in state and
tribal Performance Partnership Grants under 40 CFR part 35 subparts A
and B, with the exception of funds used to capitalize a revolving loan
fund for brownfield remediation under section 104(k)(3); or purchase
insurance or develop a risk sharing pool, an indemnity pool, or
insurance mechanism to provide financing for response actions under a
State or Tribal response program.
    Requests for funding will be accepted from December 1, 2012 through
January 31, 2013. Requests EPA receives after January 31, 2013 will not
be considered for FY2013 funding. Information that must be submitted
with the funding request is listed in Section VIII of this guidance.
States or tribes that do not submit the request in the appropriate
manner may forfeit their ability to receive funds. First time
requestors are strongly encouraged to contact their Regional EPA
Brownfields contacts, listed at the end of this guidance, prior to
submitting their funding request.
    Requests submitted by the January 31, 2013 request deadline are
preliminary; final cooperative agreement work plans and budgets will be
negotiated with the regional offices once final funding allocation
determinations are made. As in previous years, EPA will place special
emphasis on reviewing a cooperative agreement recipient's use of prior
section 128(a) funding in making allocation decisions and unexpended
balances are subject to 40 CFR 35.118 and 40 CFR35.518 to the extent
consistent with this guidance.
    States and tribes requesting funds are required to provide a Dun
and Bradstreet Data Universal Numbering System (DUNS) number with their
cooperative agreement's final package. For more information, please go
to www.grants.gov.

II. Background

    State and tribal response programs oversee assessment and cleanup
activities at the majority of brownfields sites across the country. The
depth and breadth of state and tribal response programs vary. Some
focus on CERCLA related activities, while others are multi-faceted, for
example, addressing sites regulated by both CERCLA and the Resource
Conservation and Recovery Act (RCRA). Many state programs also offer
accompanying financial incentive programs to spur cleanup and
redevelopment. In enacting CERCLA section 128(a),\5\ Congress
recognized the accomplishments of state and tribal response programs in
cleaning up and redeveloping brownfields sites. Section 128(a) also
provides EPA with an opportunity to strengthen its partnership with
states and tribes.
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    \5\ Section 128(a) was added to CERCLA in 2002 by the Small
Business Liability Relief and Brownfields Revitalization Act
(Brownfield Amendments).
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    This funding is intended for those states and tribes with overall
management and administrative capacity within their government required
to administer a federal grant. The primary goal of this funding is to
ensure that state and tribal response programs include, or are taking
reasonable steps to include, certain elements of an environmental
response program and that the response program establishes and
maintains a public record of sites addressed.
    Subject to the availability of funds, EPA regional personnel will
be available to provide technical assistance to states and tribes as
they apply for and carry out section 128(a) cooperative agreements.

III. Eligibility for Funding

    To be eligible for funding under CERCLA section 128(a), a state or
tribe must:
    1. Demonstrate that its response program includes, or is taking
reasonable steps to include, the four elements of a response program,
described in Section V of this guidance; or be a party to voluntary
response program Memorandum of Agreement (VRP MOA) \6\ with EPA;
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    \6\ States or tribes that are parties to VRP MOAs and that
maintain and make available a public record are automatically
eligible for section 128(a) funding.
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    AND
    2. Maintain and make available to the public a record of sites at
which response actions have been completed in the previous year and are
planned to be addressed in the upcoming year, see CERCLA section
128(b)(1)(C).

IV. Matching Funds/Cost-Share

    States and tribes are not required to provide matching funds for
cooperative agreements awarded under section 128(a), with the exception
of the section 128(a) funds a state or tribe uses to capitalize a
Brownfields Revolving Loan Fund under CERCLA section 104(k)(3).

V. The Four Elements--Section 128(a)

    Section 128(a) recipients that do not have a VRP MOA with EPA must
demonstrate that their response program includes, or is taking
reasonable steps to include, the four elements.

Achievement of the four elements should be viewed as a priority.
Section 128(a) authorizes funding for activities necessary to establish
and enhance the four elements, and to establish and maintain the public
record requirement.
    The four elements of a response program are described below:
    1. Timely survey and inventory of brownfields sites in state or
tribal land. EPA's goal in funding activities under this element is to
enable the state or tribe to establish or enhance a system or process
that will provide a reasonable estimate of the number, likely
locations, and the general characteristics of brownfields sites in
their state or tribal lands. EPA recognizes the varied scope of state
and tribal response programs and will not require states and tribes to
develop a ``list'' of brownfields sites. However, at a minimum, the
state or tribe should develop and/or maintain a system or process that
can provide a reasonable estimate of the number, likely location, and
general characteristics of brownfields sites within their state or
tribal lands. Inventories should evolve to a prioritization of sites
based on community needs, planning priorities, and protection of human
health and the environment. Particular attention should focus on those
communities with limited capacity to compete for, and manage a
competitive brownfield assessment, revolving loan, and cleanup grant.
    Given funding limitations, EPA will negotiate work plans with
states and tribes to achieve this goal efficiently and effectively, and
within a realistic time frame. For example, many of EPA's Brownfields
Assessment cooperative agreement recipients conduct inventories of
brownfields sites in their communities or jurisdictions. EPA encourages
states and tribes to work with these cooperative agreement recipients
to obtain the information that they have gathered and include it in
their survey and inventory.
    2. Oversight and enforcement authorities or other mechanisms and
resources. EPA's goal in funding activities under this element is to
have state and tribal response programs that include oversight and
enforcement authorities or other mechanisms, and resources that are
adequate to ensure that:
    a. A response action will protect human health and the environment,
and be conducted in accordance with applicable laws; and
    b. The state or tribe will complete the necessary response
activities if the person conducting the response activities fails to
complete the necessary response activities (this includes operation and
maintenance and/or long-term monitoring activities).
    3. Mechanisms and resources to provide meaningful opportunities for
public participation.\7\ EPA's goal in funding activities under this
element is to have states and tribes include in their response program
mechanisms and resources for meaningful public participation, at the
local level, including, at a minimum:
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    \7\ States and tribes establishing this element may find useful
information on public participation on EPA's community involvement
Web site at http://www.epa.gov/superfund/community/policies.htm.
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    a. Public access to documents and related materials that a state,
tribe, or party conducting the cleanup is relying on or developing in
making cleanup decisions or conducting site activities;
    b. Prior notice and opportunity for meaningful public comment on
cleanup plans and site activities including the input into the
prioritization of sites; and
    c. A mechanism by which a person who is, or may be, affected by a
release or threatened release of a hazardous substance, pollutant, or
contaminant at a brownfields site--located in the community in which
the person works or resides--may request that a site assessment be
conducted. The appropriate state or tribal official must consider this
request and appropriately respond.
    4. Mechanisms for approval of a cleanup plan, and verification and
certification that cleanup is complete. EPA's goal in funding
activities under this element is to have states and tribes include in
their response program mechanisms to approve cleanup plans and to
verify that response actions are complete, including a requirement for
certification or similar documentation from the state, the tribe, or a
licensed site professional that the response action is complete.
Written approval by a state or tribal response program official of a
proposed cleanup plan is an example of an approval mechanism.

VI. Public Record Requirement

    In order to be eligible for section 128(a) funding, states and
tribes (including those with MOAs) must establish and maintain a public
record system, described below, in order to receive funds. The public
record should be made available to the public in an effort to provide a
mechanism for meaningful public participation (refer to Section V. 3
above). Specifically, under section 128(b)(1)(C), states and tribes
must:
    1. Maintain and update, at least annually or more often as
appropriate, a record of sites that includes the name and location of
sites at which response actions have been completed during the previous
year;
    2. Maintain and update, at least annually or more often as
appropriate, a record of sites that includes the name and location of
sites at which response actions are planned to be addressed in the next
year; and
    3. Identify in the public record whether or not the site, upon
completion of the response action, will be suitable for unrestricted
use. If not, the public record must identify the institutional controls
relied on in the remedy and include relevant information concerning the
entity that will be responsible for oversight, monitoring, and/or
maintenance of the institutional and engineering controls; and how the
responsible entity is implementing those activities (see Section VI.C).
    Section 128(a) funds may be used to maintain and make available a
public record system that meets the requirements discussed above.

A. Distinguishing the ``Survey and Inventory'' Element From the
``Public Record''

    It is important to note that the public record requirement differs
from the ``timely survey and inventory'' element described in the
``Four Elements'' section above. The public record addresses sites at
which response actions have been completed in the previous year and are
planned to be addressed in the upcoming year. In contrast, the ``timely
survey and inventory'' element, described above, refers to identifying
brownfields sites regardless of planned or completed actions there.

B. Making the Public Record Easily Accessible

    EPA's goal is to enable states and tribes to make the public record
and other information, such as information from the ``survey and
inventory'' element, easily accessible. For this reason, EPA will allow
states and tribes to use section 128(a) funding to make the public
record, as well as other information, such as information from the
``survey and inventory'' element, available to the public via the
internet or other means. For example, the Agency would support funding
state and tribal efforts to include detailed location information in
the public record such as the street address, and latitude and
longitude information for

each site.\8\ States and tribes should ensure that all affected
communities have appropriate access to the public record including
making it available on-line, in print at libraries, or other community
gathering places.
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    \8\ For further information on latitude and longitude
information, please see EPA's data standards Web site available at
http://iaspub.epa.gov/sor_internet/registry/datastds/findadatastandard/epaapproved/latitudelongitude.
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    In an effort to reduce cooperative agreement reporting requirements
and increase public access to the public record, EPA encourages states
and tribes to place their public record on the Internet. If a state or
tribe places the public record on the internet, maintains the
substantive requirements of the public record, and provides EPA with
the link to that site, EPA will, for purposes of cooperative agreement
funding only, deem the public record reporting requirement met.

C. Long-Term Maintenance of the Public Record

    EPA encourages states and tribes to maintain public record
information, including data on institutional controls, on a long term
basis (more than one year) for sites at which a response action has
been completed. Subject to EPA regional office approval, states or
tribes may include development and operation of systems that ensure
long term maintenance of the public record, including information on
institutional controls (such as ensuring the entity responsible for
oversight, monitoring, and/or maintenance of the institutional and
engineering controls is implementing those activities) in their work
plans.\9\
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    \9\ States and tribes may find useful information on
institutional controls on the EPA's institutional controls Web site
at http://www.epa.gov/superfund/policy/ic/index.htm
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VII. Use of Funding

A. Overview

    Section 128(a)(1)(B) describes the eligible uses of cooperative
agreement funds by states and tribes. In general, a state or tribe may
use a cooperative agreement to ``establish or enhance'' their response
programs, including elements of the response program that include
activities related to responses at brownfields sites with petroleum
contamination. Eligible activities include, but are not limited to, the
following:
     Developing legislation, regulations, procedures,
ordinances, guidance, etc. that establish or enhance the administrative
and legal structure of their response programs;
     Establishing and maintaining the required public record
described in Section VI of this guidance;
     Operation, maintenance and long-term monitoring of
institutional controls and engineering controls;
     Conducting site-specific activities, such as assessment or
cleanup, provided such activities establish and/or enhance the response
program and are tied to the four elements. In addition to the
requirement under CERCLA section 128(a)(2)(C)(ii) to provide for public
comment on cleanup plans and site activities, EPA strongly encourages
states and tribes to seek public input regarding the priority of sites
to be addressed and solicit input from local communities, especially
potential environmental justice communities, communities with a health
risk related to exposure to hazardous waste or other public health
concerns, economically disadvantaged or remote areas, and communities
with limited experience working with government agencies. EPA will not
provide section 128(a) funds solely for assessment or cleanup of
specific brownfields sites; site-specific activities must be part of an
overall section 128(a) work plan that includes funding for other
activities that establish or enhance the four elements;
     Capitalizing a revolving loan fund (RLF) for brownfields
cleanup under CERCLA section 104(k)(3). These RLFs are subject to the
same statutory requirements and cooperative agreement terms and
conditions applicable to RLFs awarded under section 104(k)(3).
Requirements include a 20 percent match (can be in the form of a
contribution of money, labor, material, or services from a non-federal
source) on the amount of section 128(a) funds used for the RLF, a
prohibition on using EPA cooperative agreement funds for administrative
costs relating to the RLF, and a prohibition on using RLF loans or
subgrants for response costs at a site for which the recipient may be
potentially liable under section 107 of CERCLA. Other prohibitions
contained in CERCLA section 104(k)(4) also apply; and
     Purchasing environmental insurance or developing a risk-
sharing pool, indemnity pool, or insurance mechanism to provide
financing for response actions under a state or tribal response
program.

B. Uses Related to ``Establishing'' a State or Tribal Response Program

    Under CERCLA section 128(a), ``establish'' includes activities
necessary to build the foundation for the four elements of a state or
tribal response program and the public record requirement. For example,
a state or tribal response program may use section 128(a) funds to
develop regulations, ordinances, procedures, and/or guidance. For more
developed state or tribal response programs, ``establish'' may also
include activities that keep their program at a level that meets the
four elements and maintains a public record required as a condition of
funding under CERCLA section 128(b)(1)(C).

C. Uses Related to ``Enhancing'' a State or Tribal Response Program

    Under CERCLA section 128(a), ``enhance'' is related to activities
that add to or improve a state or tribal response program or increase
the number of sites at which response actions are conducted under a
state or tribal response program.
    The exact ``enhancement'' uses that may be allowable depend upon
the work plan negotiated between the EPA regional office and the state
or tribe. For example, regional offices and states or tribes may agree
that section 128(a) funds may be used for outreach and training
directly related to increasing awareness of its response program, and
improving the skills of program staff. It may also include developing
better coordination and understanding of other state response programs,
e.g., RCRA or Underground Storage Tanks (USTs). As another example,
states and tribal response programs enhancement activities can include
outreach to local communities to increase their awareness and knowledge
regarding the importance of monitoring engineering and institutional
controls. Other ``enhancement'' uses may be allowable as well.

D. Uses Related to Site-Specific Activities

1. Uses for Site-Specific Activities
    States and tribes may use section 128(a) funds for site-specific
activities that improve state or tribal capacity. The amount grantees
may request for site-specific assessments and cleanups may not exceed
50% of the total amount of funding. A grantee may request a waiver to
exceed the 50% of annual funding for site specific activities. In order
for EPA to consider the waiver, the total amount of the request may not
exceed the grantee's prior year's funding level. The funding request
must include a brief justification describing the reason(s) for
spending more than 50% of an annual allocation on site-specific
activities. An applicant must include the following information in the
written justification:

     Total amount requested for eligible brownfield site-
specific activities;
     Percentage of the eligible brownfield site-specific
activities (assuming waiver is approved) in the total budget;
     Site specific activities that will be covered by this
funding. If known, provide site specific information and describe the
development or enhancement of your state/tribal site specific program.
Further explain how the community will be (or has been) involved in
prioritization of site work and especially those sites where there is a
potential or known significant environmental impact to the community;
     Please explain how this shift in funding will not
negatively impact the core programmatic capacity (i.e., the ability to
establish/enhance four elements of a response program) and how related
activities will be maintained in spite of an increase in site-specific
work. Grantees must demonstrate that they have adequate funding from
other sources to effectively carry out work on the four elements for
EPA to grant a waiver of the 50% limit on using 128(a) funds for site-
specific activities;
     Describe how this shift in funding towards site-specific
work is more appropriate for your response program rather than a
request for an increase in overall funding;
     Please explain whether the sites to be addressed are those
for which the affected community(ies) has requested work be conducted
(refer to Section VII.A Overview of Funding for more information).
    EPA Headquarters will base approval of waivers on the information
that is included in the justification along with the request for
funding, as well as other information available to the Agency. EPA's
Regional Brownfield Coordinators will inform grantees of the Agency's
final decision(s).
2. Uses Related to Site-Specific Assessment and Cleanup Activities
    Site-specific assessment and cleanup activities should establish
and/or enhance the response program and be tied to the four elements.
Site-specific assessments and cleanups must comply with all applicable
laws and are subject to the following restrictions:
    a. Section 128(a) funds can only be used for assessments or
cleanups at sites that meet the definition of a brownfields site at
CERCLA section 101(39). EPA encourages states and tribes to use site-
specific funding to perform assessment (e.g., phase II and phase III
assessments) and cleanup activities that will lead more quickly to the
reuse of sites Furthermore, states and tribes that perform site-
specific activities should plan to engage the targeted community in the
project. For example, Community Relations Plans (CRP) could be
developed to address reasonable notice to the public concerning the
cleanup, and provide opportunities for the public to comment on the
cleanup. States and tribes should work towards securing additional
funding for site-specific activities by leveraging resources from other
sources such as businesses, non-profit organizations, education and
training providers, and/or federal, state, tribal, and local
governments;
    b. Absent EPA approval, no more than $200,000 per site assessment
can be funded with section 128(a) funds, and no more than $200,000 per
site cleanup can be funded with section 128(a) funds;
    c. Absent EPA approval, the state/tribe may not use funds awarded
under this agreement to assess and clean up sites owned or operated by
the recipient; and
    d. Assessments and cleanups cannot be conducted at sites where the
state/tribe is a potentially responsible party pursuant to CERCLA
section 107, except:
     At brownfields sites contaminated by a controlled
substance as defined in CERCLA section 101(39)(D)(ii)(I); or
     When the recipient would satisfy all of the elements set
forth in CERCLA section 101(40) to qualify as a bona fide prospective
purchaser except that the date of acquisition of the property was on or
before January 11, 2002.
    Subgrants cannot be provided to entities that may be potentially
responsible parties (pursuant to CERCLA section 107) at the site for
which the assessment or cleanup activities are proposed to be
conducted, except:
    1. At brownfields sites contaminated by a controlled substance as
defined in CERCLA section 101(39)(D)(ii)(I); or
    2. When the recipient would satisfy all of the elements set forth
in CERCLA section 101(40) to qualify as a bona fide prospective
purchaser except that the date of acquisition of the property was on or
before January 11, 2002.
3. Uses Related to Site-Specific Activities at Petroleum Brownfields
Sites
    States and tribes may use section 128(a) funds for activities that
establish and enhance their response programs including addressing
petroleum brownfield sites. Specifically, the costs of site-specific
activities, such as site assessments or cleanup at petroleum
contaminated brownfields sites, defined at CERCLA section
101(39)(D)(ii)(II), are eligible and are allowable if the activity is
included in the work plan negotiated between the EPA regional office
and the state or tribe. Section 128(a) funds used to capitalize a
Brownfields RLF may be used at brownfields sites contaminated by
petroleum to the extent allowed under CERCLA section 104(k)(3).
4. Other Eligible Uses of Funding
    Other eligible uses of funds for site-specific related include, but
are not limited to, the following activities:
     Technical assistance to federal brownfields cooperative
agreement recipients;
     Development and/or review of quality assurance project
plans (QAPPs); and
     Entering data into the ACRES database.

E. Uses Related to Activities at ``Non-Brownfields'' Sites

    Costs incurred for activities at non-brownfields sites, e.g.,
oversight, may be eligible and allowable if such activities are
included in the state's or tribe's work plan. These costs need not be
incurred in connection with a brownfields site to be eligible, but must
be authorized under the state's or tribe's work plan to be allowable.
Other uses may be eligible and allowable as well, depending upon the
work plan negotiated between the EPA regional office and the state or
tribe. However, assessment and cleanup activities may only be conducted
on eligible brownfields sites, as defined in CERCLA section 101(39).

VIII. General Programmatic Guidelines for 128(a) Grant Funding Requests

    Funding authorized under CERCLA section 128(a) is awarded through a
cooperative agreement \10\ between EPA and a state or a tribe. The
program is administered under the general EPA grant and cooperative
agreement regulations for states, tribes, and local governments found
in the Code of Federal Regulations at 40 CFR Part 31 as well as
applicable provisions of 40 CFR Part 35 Subparts A and B. Under these
regulations, the cooperative agreement recipient for section 128(a)
grant program is the government to which a cooperative agreement is
awarded and which is accountable for the use of the funds provided. The
cooperative agreement recipient is the entire legal

entity even if only a particular component of the entity is designated
in the cooperative agreement award document. Further, unexpended
balances of cooperative agreement funds are subject to 40 CFR 35.118
and 40 CFR 35.518 to the extent consistent with this guidance. EPA
allocates funds to state and tribal response programs under 40 CFR
35.420 and 40 CFR 35.737.
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    \10\ A cooperative agreement is an agreement to a state/tribe
that includes substantial involvement by EPA on activities described
in the work plan which may include technical assistance,
collaboration on program priorities, etc.
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A. One Application per State or Tribe

    Subject to the availability of funds, EPA regional offices will
negotiate and enter into section 128(a) cooperative agreements with
eligible and interested states or tribes. EPA will accept only one
application from each eligible state or tribe.

B. Define the State or Tribal Response Program

    States and tribes must define in their work plan the ``section
128(a) response program(s)'' to which the funds will be applied, and
may designate a component of the state or tribe that will be EPA's
primary point of contact for negotiations on their proposed work plan.
When EPA funds the section 128(a) cooperative agreement, states and
tribes may distribute these funds among the appropriate state and
tribal agencies that are part of the section 128(a) response program.
This distribution must be clearly outlined in their annual work plan.

C. Separate Cooperative Agreements for the Capitalization of RLFs Using
Section 128(a) Funds

    If a portion of the section 128(a) grant funds requested will be
used to capitalize a revolving loan fund for cleanup, pursuant to
section 104(k)(3), two separate cooperative agreements must be awarded,
i.e., one for the RLF and one for non-RLF uses. States and tribes may,
however, submit one initial request for funding, delineating the RLF as
a proposed use. Section 128(a) funds used to capitalize an RLF are not
eligible for inclusion into a Performance Partnership Grant (PPG).

D. Authority To Manage a Revolving Loan Fund Program

    If a state or tribe chooses to use its section 128(a) funds to
capitalize a revolving loan fund program, the state or tribe must have
the authority to manage the program, e.g., issue loans. If the agency/
department listed as the point of contact for the section 128(a)
cooperative agreement does not have this authority, it must be able to
demonstrate that another state or tribal agency does have the authority
to manage the RLF and is willing to do so.

E. Section 128(a) Cooperative Agreements Can Be Part of a Performance
Partnership Grant (PPG)

    States and tribes may include section 128(a) cooperative agreements
in their PPG 69 FR 51,756 (2004). Section 128(a) funds used to
capitalize an RLF or purchase insurance or develop a risk sharing pool,
an indemnity pool, or insurance mechanism to provide financing for
response actions under a state or tribal response program are not
eligible for inclusion in the PPG.

F. Project Period

    EPA regional offices will determine the project period for each
cooperative agreement. These may be for multiple years depending on the
regional office's cooperative agreement policies. Each cooperative
agreement must have an annual budget period tied to an annual work
plan. Pre-award costs are subject to 40 CFR 35.113 and 40 CFR 35.513.

G. Demonstrating the Four Elements

    As part of the annual work plan negotiation process, states or
tribes that do not have VRP MOAs must demonstrate that their program
includes, or is taking reasonable steps to include, the four elements
described in Section V. EPA will not fund, in future years, state or
tribal response program annual work plans if EPA determines that these
requirements are not met or reasonable progress is not being made. EPA
may base this determination on the information the state or tribe
provides to support its work plan, or on EPA's review of the state or
tribal response program.

H. Establishing and Maintaining the Public Record

    Prior to funding a state's or tribe's annual work plan, EPA
regional offices will verify and document that a public record, as
described in Section VI and below, exists and is being maintained.\11\
Specifically for:
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    \11\ For purposes of cooperative agreement funding, the state's
or tribe's public record applies to that state's or tribe's response
program(s) that utilized the section 128(a) funding.
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     States or tribes that received initial funding prior to
FY12: Requests for FY13 funds will not be accepted from states or
tribes that fail to demonstrate, by the January 31, 2013 request
deadline, that they established and are maintaining a public record.
(Note, this would potentially impact any state or tribe that had a term
and condition placed on their FY12 cooperative agreement that
prohibited drawdown of FY12 funds prior to meeting public record
requirement). States or tribes in this situation will not be prevented
from drawing down their prior year funds once the public record
requirement is met; and
     States or tribes that received initial funding in FY12: By
the time of the actual FY13 award, the state or tribe must demonstrate
that they established and maintained the public record (those states
and tribes that do not meet this requirement will have a term and
condition placed on their FY13 cooperative agreement that prevents the
drawdown of FY13 funds until the public record requirement is met).

I. Demonstration of Significant Utilization of Prior Years' Funding

    States and tribes should be aware that EPA and its Congressional
appropriations committees place significant emphasis on the utilization
of prior years' funding. Unused funds from prior years will be
considered in the allocation process. Existing balances of cooperative
agreement funds as reflected in EPA's Financial Data Warehouse could
support an allocation amount below a grantee's request for funding or,
if appropriate deobligation and reallocation by EPA Regions as provided
for in 40 CFR 35.118 and 40 CFR 35.518 . Grantees should include a
detailed explanation and justification of funds that remain in EPA's
Financial Data Warehouse from prior years (that are related to response
program activities or brownfield related activities).
    EPA Regional staff will review EPA's Financial Database Warehouse
to identify the amount of remaining prior year(s) funds. The
cooperative agreement recipient should work, as early as possible, with
both their own finance department, and with their Regional Project
Officer to reconcile any discrepancy between the amount of unspent
funds showing in EPA's system, and the amount reflected in the
recipient's records. The recipient should obtain concurrence from the
Region on the amount of unspent funds requiring justification by the
deadline for this request for funding.

J. Optional: Explanation of Overall Program Impacts of Possible Funding
Reductions

    Please explain the programmatic effects of a reduction (to your
current funding amount) on significant activities of your response
program. Specifically, at what amount (e.g., percentage of your current
funding level) would your response program experience core programmatic
impacts such as a reduction in staff, a decrease in oversight
activities, or other impacts

to the environment and health of the communities the program serves,
etc.? An EPA Region may require that this information be submitted as
part of the request for funding in order to fully understand the
individual program impacts associated with decreased funding. These
impacts will be considered as part of the decision for the final
allocation.

K. Allocation System and Process for Distribution of Funds

    EPA regional offices will work with interested states and tribes to
develop their preliminary work plans and funding requests. Final
cooperative agreement work plans and budgets will be negotiated with
the regional office once final allocation determinations are made.
Please refer to process flow chart below (dates are estimates and
subject to change):
[GRAPHIC] [TIFF OMITTED] TN21NO12.000

    For Fiscal Year 2013, EPA will consider funding requests up to a
maximum of $1.1 million per state or tribe. Please note the CERCLA
128(a) annual program's budget has remained static while demand for
funding continues to increase every year.\12\ Therefore, it is likely
that the FY13 state and tribal individual funding amounts will be less
than the FY12 individual funding amounts.
---------------------------------------------------------------------------

    \12\ FY12 the EPA received $57.4 Million in requests for funding
from States and Tribes under CERCLA 128(a). The FY12 enacted budget
was $49.3 Million. The resulting budget shortfall was approximately
$8.1 Million.
---------------------------------------------------------------------------

    After the January 31, 2013, request deadline, EPA's Regional
Offices will submit summaries of state and tribal requests to EPA
Headquarters. Before submitting requests to EPA Headquarters, regional
offices may take into account additional factors when determining
recommended allocation amounts. Such factors include, but are not
limited to, the depth and breadth of the state or tribal program; scope
of the perceived need for the funding, e.g., size of state or tribal
jurisdiction or the proposed work plan balanced against capacity of the
program, amount of current year funding, funds remaining from prior
years, etc.
    After receipt of the regional recommendations, EPA Headquarters
will consolidate requests and allocate funds accordingly.

IX. Information To Be Submitted With the Funding Request

A. Demonstration of Significant Utilization of Prior Years' Funding

    States and tribes requesting section 128(a) FY13 funds must submit
the following information, as applicable, to their regional brownfield
contact on or before January 31, 2013. If a grantee wishes to avoid an
allocation reduction, when submitting a request for FY13 funds, include
a detailed explanation and justification of funds that remain in EPA's
financial Data Warehouse from prior years (that are related to response
program activities or brownfield related activities).
    For those states and tribes that received section 128(a) funds, you
must provide the amount of prior years' funding including funds that
recipients have not received in payments (i.e., funds EPA has obligated
for grants that remain in EPA's Financial Data Warehouse). EPA will
take into account these funds in the allocation process when
determining the recipient's programmatic needs under 40 CFR 35.420 and
40 CFR 35.737.

B. Summary of Planned Use of FY12 Funding

    All states and tribes requesting FY13 funds must submit a summary
of the planned use of the funds with associated dollar amounts. Please
provide the request in the chart below. The amount of funding requested
should be an amount that can be reasonably spent in one year. It is
likely that the FY13 state and tribal individual funding amounts will
be less than the FY12 individual funding amounts. The requestor should
work, as early as possible, with their EPA Regional Program contact to
ensure that the funding amount requested and related activities are
reasonable.

----------------------------------------------------------------------------------------------------------------
                                                                  FY13        Summary of intended use  (example
                Funding use                   FY12 Awarded      Requested                   uses)
----------------------------------------------------------------------------------------------------------------
Establish or enhance the four elements:....         $XX,XXX         $XX,XXX
    1. Timely survey and inventory of        ..............  ..............  1. Examples:
     brownfields sites;.                                                      Inventory and prioritize
                                                                              brownfields sites.
                                                                              Institutional control (IC)/
                                                                              engineering control (EC) tracking.
    2. Oversight and enforcement             ..............  ..............  2. Examples:
     authorities or other mechanisms;.                                        Develop/enhance
                                                                              ordinances, regulations,
                                                                              procedures for response programs.

    3. Mechanisms and resources to provide   ..............  ..............  3. Examples:
     meaningful opportunities for public                                      Develop a community
     participation;.                                                          involvement process.
                                                                              Fund an outreach
                                                                              coordinator.
                                                                              Issue public notices of
                                                                              site activities.
                                                                              Develop a process to seek
                                                                              public input from local
                                                                              communities, especially potential
                                                                              environmental justice communities,
                                                                              communities with a health risk
                                                                              related to exposure to hazardous
                                                                              waste or other public health
                                                                              concerns, economically
                                                                              disadvantaged or remote areas, and
                                                                              communities with limited
                                                                              experience working with government
                                                                              agencies to prioritize sites to be
                                                                              addressed.
    4. Mechanisms or approval of a cleanup   ..............  ..............  4. Examples:
     plan and verification and                                                Review cleanup plans and
     certification that cleanup is complete.                                  verify completed actions.
Establish and maintain the public record...          XX,XXX          XX,XXX     Maintain public record.
                                                                              Create Web site for public
                                                                              record.
                                                                              Disseminate public
                                                                              information on how to access the
                                                                              public record.
Enhance the response program...............          XX,XXX          XX,XXX     Provide oversight of
                                                                                site assessments and cleanups.
                                                                              Attend training and
                                                                              conferences on brownfields cleanup
                                                                              technologies & other brownfields
                                                                              topics.
                                                                              Update and enhance program
                                                                              management activities.
                                                                              Negotiate/oversee
                                                                              contracts for response programs.
                                                                              Enhance program management
                                                                              & tracking systems.
Site-specific activities (amount requested           XX,XXX          XX,XXX     Perform site assessments
 should be incidental to the workplan, see                                      and cleanups.
 Section VI.D for more information on what                                    Develop QAPPs.
 activities should be considered when                                         Prepare Property Profile
 calculating site specific activities).                                       Forms/input data into ACRES
                                                                              database for these sites.
Environmental insurance....................          XX,XXX          XX,XXX     Review potential uses of
                                                                                environmental insurance.
                                                                              Manage an insurance risk
                                                                              pool.
Revolving loan fund........................          XX,XXX          XX,XXX     Create a cleanup
                                                                                revolving loan fund.
        Total funding......................         XXX,XXX         XXX,XXX    Performance Partnership Grant?
                                                                                Yes [squ] No [squ]
----------------------------------------------------------------------------------------------------------------

X. Terms and Reporting

    Cooperative agreements for state and tribal response programs will
include programmatic and administrative terms and conditions. These
terms and conditions will describe EPA's substantial involvement
including technical assistance and collaboration on program development
and site-specific activities. Each of the subsections below summarizes
the basic terms and conditions, and related reporting that will be
required if a cooperative agreement with EPA is awarded.

A. Progress Reports

    In accordance with 40 CFR 31.40, state and tribes must provide
progress reports as provided in the terms and conditions of the
cooperative agreement negotiated with EPA regional offices. State and
tribal costs for complying with reporting requirements are an eligible
expense under the section 128(a) cooperative agreement. As a minimum,
state or tribal progress reports must include both a narrative
discussion and performance data relating to the state's or tribe's
accomplishments and environmental outputs associated with the approved
budget and workplan, and should provide an accounting of section 128(a)
funding. If applicable, the state or tribe must include information on
activities related to establishing or enhancing the four elements of
the state's or tribe's response program. All recipients must provide
information relating to establishing or, if already established,
maintaining the public record. Depending upon the activities included
in the state's or tribe's work plan, an EPA regional office may request
that a progress report include:
    1. Reporting interim and final progress reports. Reports must
prominently display the following three relevant Essential Elements as
reflected in the current EPA strategic plan: Strategic Plan Goal 3:
Cleaning Up Communities and Advancing Sustainable Development,
Strategic Plan Objective 3.1: Promote Sustainable and Livable
Communities, and Work plan Commitments and Timeframes. EPA's strategic
plan on the internet: http://www.epa.gov/planandbudget/strategicplan.html.
    2. Reporting environmental insurance. Recipients with work plans
that include funding for environmental insurance must report:
     Number and description of insurance policies purchased
(e.g., type of coverage provided; dollar limits of coverage; any
buffers or deductibles; category and identity of insured persons;
premium; first dollar or umbrella; site specific or blanket; occurrence
or claims made, etc.);
     The number of sites covered by the insurance;
     The amount of funds spent on environmental insurance
(e.g., amount dedicated to insurance program, or to insurance
premiums); and
     The amount of claims paid by insurers to policy holders.
    3. Reporting for site-specific assessment or cleanup activities.
Recipients with work plans that include funding for brownfields site
assessment or cleanup must input information required by the OMB-
approved Property Profile Form into the Assessment Cleanup and
Redevelopment Exchange System (ACRES) database for each site assessment
and cleanup. In addition, recipients must report how they provide the
affected community with prior notice and opportunity for meaningful
participation as per CERCLA section 128(a)(2)(C)(ii) on proposed
cleanup plans and site activities. For example, EPA strongly encourages
states and tribes to seek public input regarding the priority of sites
to be addressed and

solicit input from local communities, especially potential
environmental justice communities, communities with a health risk
related to exposure to hazardous waste or other public health concerns,
economically disadvantaged or remote areas, and communities with
limited experience working with government agencies.
    4. Reporting for other site-specific activities. Recipients with
work plans that include funding for other site-specific related
activities must include a description of the site-specific activities
and the number of sites at which the activity was conducted. For
example:
     Number and frequency of oversight audits of licensed site
professional certified cleanups;
     Number and frequency of state/tribal oversight audits
conducted;
     Number of sites where staff conducted audits, provided
technical assistance, or conducted other oversight activities; and
     Number of staff conducting oversight audits, providing
technical assistance, or conducting other oversight activities.
    5. Reporting required when using funding for an RLF. Recipients
with work plans that include funding for revolving loan fund (RLF) must
include the information required by the terms and conditions for
progress reporting under CERCLA section 104(k)(3) RLF cooperative
agreements.
    6. Reporting for Non-MOA states and tribes. All recipients without
a VRP MOA must report activities related to establishing or enhancing
the four elements of the state's or tribe's response program. For each
element state/tribes must report how they are maintaining the element
or how they are taking reasonable steps to establish or enhance the
element as negotiated in individual state/tribal work plans. For
example, pursuant to CERCLA section 128(a)(2)(B), reports on the
oversight and enforcement authorities/mechanisms element may include:
     A narrative description and copies of applicable documents
developed or under development to enable the response program to
conduct enforcement and oversight at sites. For example:
    [cir] Legal authorities and mechanisms (e.g., statutes,
regulations, orders, agreements); and
    [cir] Policies and procedures to implement legal authorities; and
other mechanisms;
     A description of the resources and staff allocated/to be
allocated to the response program to conduct oversight and enforcement
at sites as a result of the cooperative agreement;
     A narrative description of how these authorities or other
mechanisms, and resources, are adequate to ensure that:
    [cir] A response action will protect human health and the
environment; and be conducted in accordance with applicable federal and
state law; and if the person conducting the response action fails to
complete the necessary response activities, including operation and
maintenance or long-term monitoring activities, the necessary response
activities are completed; and
     A narrative description and copy of appropriate documents
demonstrating the exercise of oversight and enforcement authorities by
the response program at a brownfields site.
    The regional offices may also request other information be added to
the progress reports, as appropriate, to properly document activities
described by the cooperative agreement work plan.
    EPA regions may allow states or tribes to provide performance data
in appropriate electronic format.
    The regional offices will forward progress reports to EPA
Headquarters, if requested. This information may be used to develop
national reports on the outcomes of CERCLA section 128(a) funding to
states and tribes.

B. Reporting of Program Activity Levels

    States and tribes must report, by January 31, 2013, a summary of
the previous federal fiscal year's work (October 1, 2011 through
September 30, 2012). The following information must be submitted to
your regional project officer:
     Environmental programs where CERCLA 128(a) funds are used
to support capacity building (general program support, non-site-
specific work). Indicate as appropriate from the following:

--Brownfields
--Underground Storage Tanks/Leaking Underground Storage Tanks
--Federal Facilities
--Solid Waste
--Superfund
--Hazardous Waste Facilities
--VCP (Voluntary Cleanup Program, Independent Cleanup Program, etc.)
--Other ----;
     Number of properties (or sites) enrolled in a response
program during FY12;
     Number of properties (or sites) where documentation
indicates that cleanup work is complete and all required institutional
controls (IC's) are in place, or not required;
     Total number of acres associated with properties (or
sites) in the previous bullet; and
     Number of properties where assistance was provided, but
the property was not enrolled in the response program (OPTIONAL).
    EPA may require states/tribes to report specific performance
measures related to the four elements which can be aggregated for
national reporting to Congress.
    For example:
    1. Timely survey and inventory--estimated number of brownfields
sites in the state or on tribal land;
    2. Oversight and enforcement authorities/mechanisms--number of
active cleanups and percentage that received oversight; percentage of
active cleanups not in compliance with the cleanup workplan and that
received communications from recipient regarding non-compliance;
    3. Public participation--percentage of sites in the response
program where public meetings/notices were conducted regarding the
cleanup plan and/or other site activities; number of requests and
responses to site assessment requests; and
    4. Cleanup approval/certification mechanisms--total number of ``no
further action'' letters or total number of certificate of completions.

    Note: This reporting requirement may include activities not
funded with CERCLA Section 128(a) funding, because this information
may be used by EPA to evaluate whether recipients have met or are
taking reasonable steps to meet the four elements of a response
program pursuant to CERCLA Section 128(a)(2).

C. Reporting of Public Record

    All recipients must report, as specified in the terms and
conditions of their cooperative agreement, information related to
establishing, or if already established, maintaining the public record,
described above. States and tribes can refer to an already existing
public record, e.g., Web site or other public database to meet the
public record requirement. Recipients reporting may only be required to
demonstrate that the public record (a) exists and is up-to-date, and
(b) is adequate. A public record may include the following information:
    A list of sites at which response actions have been completed
including:
     Date the response action was completed;
     Site name;
     Name of owner at time of cleanup, if known;
     Location of the site (street address, and latitude and
longitude);
     Whether an institutional control is in place;
     Type of institutional control in place (e.g., deed
restriction, zoning

restriction, local ordinance, state registries of contaminated
property, deed notices, advisories, etc.);
     Nature of the contamination at the site (e.g., hazardous
substances, contaminants or pollutants, petroleum contamination, etc.);
and
     Size of the site in acres.
    A list of sites planned to be addressed by the state or tribal
response program including:
     Site name and the name of owner at time of cleanup, if
known;
     Location of the site (street address, and latitude and
longitude);
     To the extent known, whether an institutional control is
in place;
     Type of the institutional control in place (e.g., deed
restriction, zoning restriction, local ordinance, state registries of
contaminated property, deed notices, advisories, etc.);
     To the extent known, the nature of the contamination at
the site (e.g., hazardous substances, contaminants, or pollutants,
petroleum contamination, etc.); and
     Size of the site in acres

D. Award Administration Information

1. Subaward and Executive Compensation Reporting
    Applicants must ensure that they have the necessary processes and
systems in place to comply with the subaward and executive total
compensation reporting requirements established under OMB guidance at 2
CFR Part 170, unless they qualify for an exception from the
requirements, should they be selected for funding.
2. Central Contractor Registration (CCR)/System for Award Management
(SAM) and Data Universal Numbering System (DUNS) Requirements
    Unless exempt from these requirements under OMB guidance at 2 CFR
Part 25 (e.g., individuals), applicants must:
     Register in the CCR/SAM prior to submitting an application
or proposal under this announcement. CCR/SAM information can be found
at https://www.sam.gov/portal/public/SAM/;
     Maintain an active CCR/SAM registration with current
information at all times during which it has an active Federal award or
an application or proposal under consideration by an agency, and
     Provide its DUNS number in each application or proposal it
submits to the agency. Applicants can receive a DUNS number, at no
cost, by visiting the D&B Web site at: https://iupdate.dnb.com/iUpdate/companylookup.htm.
    Failure to comply with these requirements will affect the
applicant's ability to receive funding. Please note that the CCR has
been replaced by the System for Award Management (SAM). To learn more
about SAM, go to SAM.gov or https://www.sam.gov/portal/public/SAM/.
3. Use of Funds
    An applicant that receives an award under this announcement is
expected to manage assistance agreement funds efficiently and
effectively, and make sufficient progress towards completing the
project activities described in the work-plan in a timely manner. The
assistance agreement will include terms/conditions implementing this
requirement.

------------------------------------------------------------------------
           Region                     State                Tribal
------------------------------------------------------------------------
1--CT, ME, MA, NH, RI, VT...  James Byrne, 5 Post   AmyJean McKeown, 5
                               Office Square,        Post Office Square,
                               Suite 100 (OSRR07-    Suite 100 (OSRR07-
                               2), Boston, MA        2), Boston, MA
                               02109-3912, Phone     02109-3912, Phone
<PHONE_NUMBER> Fax<PHONE_NUMBER> Fax
<PHONE_NUMBER>.<PHONE_NUMBER>.
2--NJ, NY, PR, VI...........  Alison Devine, 290    Alison Devine, 290
                               Broadway, 18th        Broadway, 18th
                               Floor, New York, NY   Floor, New York, NY
                               10007-1866, Phone     10007-1866, Phone
<PHONE_NUMBER> Fax<PHONE_NUMBER> Fax
<PHONE_NUMBER>.<PHONE_NUMBER>.
3--DE, DC, MD, PA, VA, WV...  Janice Bartel, 1650   ....................
                               Arch Street
                               (3HS51),
                               Philadelphia, PA
                               19103, Phone (215)
                               814-5394 Fax (215)
                               814-3015.
4--AL, FL, GA, KY, MS, NC,    Nicole Comick-Bates,  Cindy J. Nolan, 61
 SC, TN.                       61 Forsyth Street,    Forsyth Street SW.,
                               S.W, 10TH FL          10TH FL (9T25),
                               (9T25), Atlanta, GA   Atlanta, GA 30303-
                               30303-8909, Phone     8909, Phone (404)
<PHONE_NUMBER> Fax    562-8425 Fax (404)
<PHONE_NUMBER>.       562-8788.
5--IL, IN, MI, MN, OH, WI...  Jan Pels, 77 West     Jane Neumann, 77
                               Jackson Boulevard     West Jackson
                               (SE-7J), Chicago,     Boulevard (SE-7J),
                               IL 60604-3507,        Chicago, IL 60604-
                               Phone (312) 886-      3507, Phone (312)
                               3009 Fax (312)<PHONE_NUMBER> Fax (312)
                               2161.                 697-2649.
6--AR, LA, NM, OK, TX.......  Amber Perry, 1445     Amber Perry, 1445
                               Ross Avenue, Suite    Ross Avenue, Suite
                               1200 (6SF), Dallas,   1200 (6SF), Dallas,
                               TX 75202-2733,        TX 75202-2733,
                               Phone (214) 665-      Phone (214) 665-
                               3172 Fax (214) 665-   3172 Fax (214) 665-
                               6660.                 6660.
7--IA, KS, MO, NE...........  Susan Klein, 11201    Susan Klein, 11201
                               Renner Boulevard      Renner Boulevard
                               (SUPRSTAR), Lenexa,   (SUPRSTAR), Lenexa,
                               KS 66219, Phone       KS 66219, Phone
<PHONE_NUMBER> Fax<PHONE_NUMBER> Fax
<PHONE_NUMBER>.<PHONE_NUMBER>.
8--CO, MT, ND, SD, UT, WY...  Christina Wilson,     Barbara Benoy, 1595
                               1595 Wynkoop Street   Wynkoop Street
                               (EPR-B), Denver, CO   (8EPR-SA), Denver,
                               80202-1129, Phone     CO 80202-1129,
<PHONE_NUMBER> Fax    Phone (303) 312-
<PHONE_NUMBER>.       6760 Fax (303) 312-
                                                     6962.
9--AZ, CA, HI, NV, AS, GU...  Eugenia Chow, 75      Glenn Kistner, 75
                               Hawthorne St. (SFD-   Hawthorne St. (SFD-
                               6-1), San             6-1), San
                               Francisco, CA         Francisco, CA
                               94105, Phone (415)    94105, Phone (415)
                               972-3160 Fax<PHONE_NUMBER> Fax (415)
                               947-3520.             947-3520.
10--AK, ID, OR, WA..........  Mary K. Goolie, 222   Mary K. Goolie, 222
                               West 7th Avenue       West 7th Avenue
                               19 (AOO),    19 (AOO),
                               Anchorage, AK         Anchorage, AK
                               99513, Phone ((907)   99513, Phone ((907)
                               271-3414 Fax<PHONE_NUMBER> Fax (907)
                               271-3424.             271-3424.
------------------------------------------------------------------------

XI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review under Executive Orders 12866 and 13563 (76 FR 3821,
January 21, 2011). Because this action is not subject to notice and
comment requirements under the Administrative Procedures Act or any
other statute, it is not subject to the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) or Sections 202 and 205 of the Unfunded Mandates
Reform Act of 1999 (UMRA) (Pub.L. 104-4). In addition, this action does
not significantly or uniquely affect small governments. This

action does not create new binding legal requirements that
substantially and directly affect Tribes under Executive Order 13175
(63 FR 67249, November 9, 2000). This action does not have significant
Federalism implications under Executive Order 13132 (64 FR 43255,
August 10, 1999). Because this final rule has been exempted from review
under Executive Order 12866, this final rule is not subject to
Executive Order 13211, entitled Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355,
May 22, 2001) or Executive Order 13045, entitled Protection of Children
from Environmental Health Risks and Safety Risks (62 FR 19885, April
23, 1997). This final rule does not contain any information collections
subject to OMB approval under the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq., nor does it require any special considerations
under Executive Order 12898, entitled Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994). This action does not
involve technical standards; thus, the requirements of Section 12(d) of
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. The Congressional Review Act, 5 U.S.C. 801 et
seq., generally provides that before certain actions may take effect,
the agency promulgating the action must submit a report, which includes
a copy of the action, to each House of the Congress and to the
Comptroller General of the United States. Because this final action
does not contain legally binding requirements, it is not subject to the
Congressional Review Act.

    Dated: November 15, 2012.
David R. Lloyd,
Director, Office of Brownfields and Land Revitalization, Office of
Solid Waste and Emergency Response.
[FR Doc. 2012-28330 Filed 11-20-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 126 (Friday, June 29, 2012)]
[Notices]
[Pages 38866-38869]
[FR Doc No: 2012-15937]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67247; File No. SR-FINRA-2012-030]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing and Immediate Effectiveness of
Proposed Rule Change To Amend Sections 4 and 6 of Schedule A to the
FINRA By-Laws Regarding Fees Relating to the Central Registration
Depository

June 25, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on June 11, 2012, Financial Industry Regulatory Authority, Inc.
(``FINRA'') filed with the Securities and Exchange Commission (``SEC''
or ``Commission'') the proposed rule change as described in Items I, II
and III below, which Items have been prepared by FINRA. FINRA has
designated the proposed rule change as ``establishing or changing a
due, fee or other charge'' under Section 19(b)(3)(A)(ii) of the Act \3\
and Rule 19b-4(f)(2) thereunder,\4\ which renders the proposed rule
change effective upon receipt of this filing by the Commission. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    FINRA is proposing to amend Sections 4 and 6 of Schedule A to the
FINRA By-Laws to implement changes to certain fees relating to the
Central Registration Depository (``CRD[supreg]'' or ``CRD system'').
    The text of the proposed rule change is available on FINRA's Web
site at http://www.finra.org, at the principal office of FINRA and at
the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. FINRA has prepared summaries, set forth in sections A,
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    As described in further detail below, FINRA is proposing to amend
Schedule A to the FINRA By-Laws (``Schedule A'') to implement changes
to certain fees relating to the CRD system.\5\
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    \5\ The CRD system is the central licensing and registration
system for the U.S. securities industry. The CRD system enables
individuals and firms seeking registration with multiple states and
self-regulatory organizations (``SROs'') to do so by submitting a
single form, fingerprint card and a combined payment of fees to
FINRA. Through the CRD system, FINRA maintains the qualification,
employment and disciplinary histories of registered associated
persons of broker-dealers. Certain information reported to the CRD
system is displayed in BrokerCheck[supreg], an electronic system
that provides the public with information on the professional
background, business practices, and conduct of FINRA members and
their associated persons. Investors use BrokerCheck to help make
informed choices about the individuals and firms with which they
currently conduct or are considering conducting business.
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Initial/Transfer Registration Fee
    Under Section 4(b)(1) of Schedule A, FINRA charges an $85 fee for
each initial or transfer Uniform Application for Securities Industry
Registration or Transfer (``Form U4'') filed by a member in the CRD
system to register an

individual. In those cases where a member is transferring the
registrations of individuals in connection with the acquisition of all
or part of another member's business, FINRA provides a discount to the
fee, ranging from 10 to 50 percent, based on the number of registered
personnel being transferred. FINRA is proposing to increase the
registration fee to $100; it is not proposing to make any changes to
the current discount schedule.
    This fee has been static since 1995.\6\ Since 1995, FINRA has
regularly enhanced the CRD system by adding features and functionality
(e.g., work queues, standard reports, email notifications) designed to
make form filing more efficient for members, and to otherwise help
members meet their reporting and related regulatory obligations. FINRA
also has consistently made usability and navigational enhancements
since deploying the web-based CRD system in 1999. Finally, FINRA has
increased the number of registration categories available to
individuals, as well as the number of SROs and jurisdictions with which
individuals and firms may register.
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    \6\ See Securities Exchange Act Release No. 36025 (July 26,
1995), 60 FR 39200 (August 1, 1995) (Notice of Filing and Immediate
Effectiveness of File No. SR-NASD-95-32).
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Disclosure Filing Fees
    As part of the securities industry's licensing and registration
process, individuals and members are required to report certain
disclosure events or proceedings to the CRD system. These disclosure
matters include, for example, certain criminal charges and convictions,
regulatory actions, investment-related civil judgments and injunctions,
and financial events such as bankruptcies and unsatisfied liens.
Individuals report these disclosure events or proceedings through Form
U4 or Uniform Termination Notice for Securities Industry Registration
(``Form U5''), while members report disclosure matters in which they or
a control affiliate have been involved via the Uniform Application for
Broker-Dealer Registration (``Form BD'').
    When a disclosure filing is made for either an individual or
member, FINRA must, among other things, confirm that the matter is
properly reported; review any documentation submitted and/or determine
whether additional documentation is required; conduct any necessary
independent research; and, depending on the matter reported, analyze
whether the event or proceeding subjects the individual or member to a
statutory disqualification pursuant to Section 3(a)(39) of the Act.\7\
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    \7\ 15 U.S.C. 78c(a)(39).
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    Under Section 4(b)(3) of Schedule A, FINRA assesses a $95 fee to
process an initial or amended Form U4 or Form U5 that includes the
initial reporting, amendment or certification of one or more disclosure
events or proceedings. FINRA currently does not charge a fee to process
a Form BD that contains a disclosure event or proceeding. FINRA is
proposing to increase the disclosure filing fee for Forms U4 and U5 to
$110 and to establish a disclosure filing fee for Form BD of $110.
    Reviewing disclosure information has become more complex, in part
because Forms U4 and U5 have added further disclosure questions \8\ and
FINRA's By-Laws have been revised to expand the categories under which
an individual or member can be subject to a statutory
disqualification.\9\ As a result, while costs to administer the CRD
program have increased, those costs have not been offset by a
commensurate increase in the current disclosure filing fee, which has
remained static since 1995,\10\ or the establishment of a fee to cover
the costs associated with review of disclosure matters submitted on
Form BD.
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    \8\ See Securities Exchange Act Release No. 59916 (May 13,
2009), 74 FR 23750 (May 20, 2009) (Order Approving File No. SR-
FINRA-2009-008).
    \9\ See Securities Exchange Act Release No. 56145 (July 26,
2007), 72 FR 42169 (August 1, 2007) (Order Approving File No. SR-
NASD-2007-023).
    \10\ See supra note 6.
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System Processing Fee
    Under Section 4(b)(6) of Schedule A, FINRA currently charges an
annual $30 system processing fee for each member's registered
individuals. FINRA is proposing to increase the system processing fee
to $45. This fee has not been increased since January 2000.\11\ Since
2000, FINRA's costs to operate, develop, and maintain the CRD system
(e.g., investments in system infrastructure and data security) have
increased.
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    \11\ See Securities Exchange Act Release No. 41937 (September
28, 1999), 64 FR 53762 (October 4, 1999) (Notice of Filing and
Immediate Effectiveness of File No. SR-NASD-99-43).
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Fingerprint Fees
    FINRA processes fingerprints submitted by members on behalf of
their associated persons who are required to be fingerprinted pursuant
to Section 17(f)(2) of the Act \12\ and Rule 17f-2 thereunder.\13\
Under Section 4(b)(4) of Schedule A, FINRA currently charges a fee of
$13 to process each set of fingerprints submitted by a member, plus an
additional fee that FINRA collects on behalf of the Federal Bureau of
Investigation (``FBI''), consistent with FBI guidelines.\14\
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    \12\ 15 U.S.C. 78q(f)(2).
    \13\ 17 CFR 240.17f-2.
    \14\ The current FBI fee is $14.50. See Revised User Fee
Schedule, 76 FR 78950 (December 20, 2011).
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    Members submit fingerprints to FINRA either electronically or via a
hard copy fingerprint card. FINRA is proposing to increase the
processing fee for fingerprints submitted electronically to $15 and to
increase the fee for fingerprints submitted by a hard copy fingerprint
card to $30.
    The fingerprint fee has not increased since 2003.\15\ FINRA is
proposing a two-tiered fingerprint processing fee structure in part to
reflect that the costs associated with processing fingerprints
submitted via a hard copy fingerprint card are much higher than those
that are submitted electronically. Specifically, fingerprints submitted
by a hard copy card require additional processing by FINRA, including
adding a barcode, if necessary, to the card for tracking purposes;
scanning the fingerprints and converting them to a digital image for
submission to the FBI; and, for first-time registrants, entering the
individual's personal and demographic information into the CRD system.
FINRA also believes that the two-tiered fingerprint fee structure will
incentivize firms to submit fingerprints electronically, making
processing less time-intensive for FINRA staff. FINRA notes that
members will be able to choose how they submit their associated
persons' fingerprints and therefore will have some control over the
fees they incur for fingerprint processing.
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    \15\ See Securities Exchange Act Release No. 48379 (August 20,
2003), 68 FR 51622 (August 27, 2003) (Notice of Filing and Immediate
Effectiveness of File No. SR-NASD-2003-109).
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    In addition to processing fingerprints submitted by members, FINRA
also processes and posts fingerprint results and identifying
information submitted by a member that have been processed through
another SRO. Pursuant to Section 4(b)(5) of Schedule A, FINRA charges a
fee of $13 for processing and posting these submissions. FINRA is
proposing to increase this fee to $30.
    This fee has been static since 2003.\16\ FINRA notes there are
higher costs associated with the processing and posting of fingerprint
results and identifying information from other SROs. In this regard,
upon receipt of the fingerprint results and identifying information,
FINRA images and stores the documents received, verifies and matches
the fingerprint processing results to an existing record in the CRD

system, if available, and manually posts the results to the CRD system.
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    \16\ See supra note 15.
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Mass Transfer Registration Fees
    FINRA's Mass Transfer Program allows for the bulk transfer of
registration and fingerprint information within the CRD system when a
member is involved in a business combination such as a merger,
consolidation or reorganization with another member. Under Section 6(b)
of Schedule A, a member that FINRA determines to be a successor
organization to a predecessor member is not required to pay the fees
for the re-registration of branch offices and personnel of the
predecessor as part of the mass transfer. A non-successor member,
however, is required to pay these re-registration fees.
    FINRA is proposing to eliminate the exception to the payment of re-
registration fees for successor members involved in a mass transfer.
FINRA notes that a mass transfer, which is an optional service that
FINRA makes available to member firms that engage in a business
combination, involves significant work on FINRA's part, including
reviewing transaction details; entering the mass transfer into the CRD
system; addressing questions from firm personnel or, in certain
circumstances, providing them with training; and post-mass transfer
troubleshooting. The elimination of the exception will result in all
members that participate in FINRA's Mass Transfer Program to be [sic]
assessed fees for the re-registration of branch offices and personnel
of the predecessor member.
Late Disclosure Fee
    Under Section 4(h) of Schedule A, FINRA charges a fee of $10 per
day, up to a maximum of $300, for each day that a new disclosure event
or a change in the status of a previously reported disclosure event is
not timely filed on an initial or amended Form U5 or an amended Form
U4. This fee is assessed starting on the day following the last date on
which the event or change in status was required to be reported.
    FINRA is proposing to increase the late disclosure fee to $100 for
the first day that an applicable disclosure event is not timely filed
and $25 for each subsequent day, up to a maximum of 60 days. Under the
proposal, the maximum amount of the late disclosure fee will increase
from $300 to $1,575.
    The current late disclosure filing fee has been in effect and
remained static since 2004.\17\ Notwithstanding this fact, some members
and individuals still fail to timely report initial or updated
disclosure events.\18\ While FINRA continues to address the issue of
late disclosure filings through other avenues, including disciplinary
actions, FINRA believes that it is appropriate to increase the late
disclosure filing fee in part to help ensure that disclosure events are
reported and updated in a timely manner.
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    \17\ See Securities Exchange Act Release No. 49224 (February 11,
2004), 69 FR 7833 (February 19, 2004) (Notice of Filing and
Immediate Effectiveness of File No. SR-NASD-2003-192).
    \18\ See, e.g., MML Investors Services, LLC, FINRA AWC No.
2010020873501 (November 16, 2011); Goldman, Sachs & Co., FINRA AWC
No.<PHONE_NUMBER>801 (November 9, 2010), available at http://www.finra.org/Industry/Enforcement/DisciplinaryActions/FDAS/.
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Implementation
    FINRA has filed the proposed rule change for immediate
effectiveness. FINRA is proposing that the implementation date of the
proposed rule change will be January 2, 2013. Specifically, the
proposed initial/transfer registration fee, disclosure filing,
fingerprint, and late disclosure fees would become effective for
filings or fingerprints submitted on or after January 2, 2013. The
proposed changes to the mass transfer registration fees would become
effective for mass transfers executed on or after January 2, 2013.
Lastly, the proposed system processing fee would become effective for
the 2013 Renewal Program.\19\
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    \19\ As part of the 2013 Renewal Program, Preliminary Renewal
Statements reflecting the proposed $45 system processing fee will be
made available to members in the fourth quarter of 2012.
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2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(5) of the Act,\20\ which requires, among
other things, that FINRA rules provide for the equitable allocation of
reasonable dues, fees and other charges among members and issuers and
other persons using any facility or system that FINRA operates or
controls.
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    \20\ 15 U.S.C. 78o-3(b)(5).
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    FINRA believes that the proposed fees are reasonable based on the
increased costs associated with operating and maintaining its
registration and disclosure programs, specifically the CRD system and
BrokerCheck. The proposed fees also contribute to the general funding
of FINRA's overall regulatory program and serve to ensure that FINRA is
sufficiently capitalized to meet its regulatory responsibilities. The
current fees have remained static for at least seven years and some of
the fees have not been increased in over 16 years. During this time,
several enhancements have been made to the CRD system, including: (1)
Incorporation of various uniform registration form changes; (2)
electronic fingerprint processing; (3) Web EFT\TM\, which allows
subscribing firms to submit batch filings to the CRD system; (4)
increases in the number and types of reports available through the CRD
system; and (5) significant changes to BrokerCheck, including making
BrokerCheck easier to use and expanding the amount of information made
available through the system.
    FINRA further believes that the proposed fees are reasonable
because they help to ensure the integrity of the information in the CRD
system. The integrity of the information in the CRD system is very
important because the Commission, FINRA, other SROs and state
securities regulators use the CRD system to make licensing and
registration decisions, among other things. Furthermore, the
information displayed in BrokerCheck, which investors use to help make
informed choices about the individuals and firms with which they
currently conduct or are considering conducting business, is derived
from the CRD system.
    FINRA also believes that the proposed fees are equitably allocated
in that they will apply equally to all individuals and members required
to report information to the CRD system. Thus, those members that
register more individuals or submit more filings through the CRD system
will generally pay more in fees than those members that use the CRD
system to a lesser extent.

B.Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \21\ and paragraph (f)(2) of Rule 19b-4
thereunder.\22\ At any time within 60 days of the filing of the
proposed rule change, the Commission summarily may temporarily suspend
such rule change if it appears to the Commission that such

action is necessary or appropriate in the public interest, for the
protection of investors, or otherwise in furtherance of the purposes of
the Act. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-FINRA-2012-030 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-FINRA-2012-030. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of FINRA. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-FINRA-2012-030 and should be
submitted on or before July 20, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary .
[FR Doc. 2012-15937 Filed 6-28-12; 8:45 am]
BILLING CODE 8011-01-P