This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

13300 

Vol. 76, No. 48 

Friday, March 11, 2011 

DEPARTMENT OF ENERGY 

10 CFR Parts 600, 603, 609, and 611 

RIN 1990–AA36 

Procedures for Submitting to the 

Department of Energy Trade Secrets 

and Commercial or Financial 

Information That Is Privileged or 

Confidential 

AGENCY: Office of the General Counsel, 

Department of Energy (DOE). 

ACTION: Notice of proposed rulemaking; 

request for comment. 

SUMMARY: DOE proposes to standardize 

across its various programs procedures 

for the submission and protection of 

trade secrets and commercial or 

financial information that is privileged 

or confidential, where such information 

is submitted by applicants for various 

forms of DOE assistance (including 

financial assistance such as grants, 

cooperative agreements, and technology 

investment agreements, as well as loans 

and loan guarantees). The procedures 

that would be established across DOE 

programs are modeled after existing 

procedures DOE uses to process loan 

applications submitted to DOE’s 

Advanced Technology Vehicles 

Manufacturing Incentive Program. 

DATES: Comments on these proposed 

procedures must be postmarked by 

April 11, 2011. 

ADDRESSES: Interested parties may 

submit comments, identified by 

Regulation Identifier Number (RIN) 

1990–AA36, by any of the following 

methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

2. E-mail: 1990–AA36@hq.doe.gov. 

Include RIN 1990–AA36 in the subject 

line of the message. 

3. Postal Mail: Office of the General 

Counsel, U.S. Department of Energy, 

Room 6A–245, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121. Please submit one signed paper 

original and include RIN 1990–AA36 on 

your submission. 

4. Hand Delivery/Courier: Office of 

the General Counsel, U.S. Department of 

Energy, Room 6A–245, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–5281. Please 

submit one signed paper original and 

include RIN 1990–AA36 on your 

submission. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Cohen, Assistant General 

Counsel for Legislation, Regulation and 

Energy Efficiency, U.S. Department of 

Energy, 1000 Independence Avenue, 

SW., Washington, DC 20585–0121. 

Telephone: (202) 586–9523. E-mail: 

1990-AA36@hq.doe.gov. Include RIN 

1990–AA36 in the subject line of the 

message. 

SUPPLEMENTARY INFORMATION: DOE 

provides assistance to eligible 

applicants through a number of different 

programs. This assistance can take the 

form of financial assistance (i.e., grants, 

cooperative agreements, and technology 

investment agreements), loan 

guarantees, and direct loans, among 

others. DOE has consistently sought to 

protect trade secrets and commercial or 

financial information that is privileged 

or confidential submitted by applicants 

for these forms of assistance, but the 

procedures required of applicants when 

submitting such information can vary. 

DOE proposes procedures for the 

submission to DOE of trade secrets and 

commercial or financial information 

that is privileged or confidential meant 

to standardize DOE’s procedures for 

processing and handling applicant 

submissions containing such 

information. The procedures proposed 

in this rulemaking are modeled after 

existing procedures DOE uses to process 

loan applications submitted to DOE’s 

Advanced Technology Vehicles 

Manufacturing Incentive Program. 

DOE proposes minor changes to the 

Notice of Restriction on Disclosure and 

Use of Data in 10 CFR 600.15(b)(1), as 

well as corresponding changes to 10 

CFR 600.15(a) and 600.15(b)(2) and (3). 

These changes are intended to allow for 

cross reference from other portions of 

subpart H (specifically, parts 609—Loan 

Guarantees for Projects that Employ 

Innovative Technologies and 611— 

Advanced Technology Vehicles 

Manufacturer Assistance Program) 

while recognizing that part 600 does not 

otherwise apply to loans and loan 

guarantees. 

DOE proposes to amend 10 CFR 

600.15(b)(1) to require a party 

submitting information to DOE, at the 

time of submission, to identify and 

assert a claim of exemption regarding 

information it considers to be trade 

secrets or commercial or financial 

information that is privileged or 

confidential such that the information 

would be exempt from disclosure under 

the Freedom of Information Act (FOIA, 

5 U.S.C. 552). This claim of exemption 

must be made by placing the following 

notice on the first page of the 

application or other document and 

specifying the page or pages to be 

restricted: ‘‘Pages [__] of this document 

may contain trade secrets or commercial 

or financial information that is 

privileged or confidential and exempt 

from public disclosure. Such 

information shall be used or disclosed 

only for evaluation purposes or in 

accordance with a financial assistance 

or loan agreement between the 

submitter and the Government. The 

Government may use or disclose any 

information that is not appropriately 

marked or otherwise restricted, 

regardless of source.’’ 

To further protect trade secrets and 

commercial or financial information 

that is privileged or confidential, DOE 

also proposes to add a requirement in 

section 600.15(b)(1) that each page 

containing such data must be 

specifically identified and marked with 

text that is similar to the following: 

‘‘May contain trade secrets or 

commercial or financial information 

that is privileged or confidential and 

exempt from public disclosure.’’ In 

addition, each line or paragraph 

containing trade secrets or commercial 

or financial information that is 

privileged or confidential on the page or 

pages on which this statement appears 

must be marked with brackets or other 

clear identification, such as 

highlighting. 

DOE acknowledges that the marking 

procedures set forth above may not be 

feasible on unalterable forms submitted 

through Grants.gov. In such cases only, 

DOE proposes that submitters include in 

a cover letter or the project narrative a 

notice containing language substantially 

similar to the following: ‘‘Forms [__] 

may contain trade secrets or commercial 

or financial information that is 


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privileged or confidential and exempt 

from public disclosure. Such 

information shall be used or disclosed 

only for evaluation purposes or in 

accordance with a financial assistance 

or loan agreement between the 

submitter and the Government. The 

Government may use or disclose any 

information that is not appropriately 

marked or otherwise restricted, 

regardless of source.’’ The cover letter or 

project narrative must also specify the 

particular information on such forms 

that the submitter believes to be trade 

secrets or commercial or financial 

information that is privileged or 

confidential. 

DOE also proposes to amend 10 CFR 

603.850 to require that the markings 

affixed to data for technology 

investment agreements that may contain 

trade secrets or commercial or financial 

information that is privileged or 

confidential conform to the marking 

requirements of 10 CFR 600.15. 

DOE further proposes that the 

regulations implementing its loan 

guarantee program for projects that 

employ innovative technologies under 

Title XVII of the Energy Policy Act of 

2005 (42 U.S.C. 16511–16514) crossreference 10 CFR 600.15. These 

regulations are set forth at 10 CFR part 

609. DOE proposes to establish the same 

marking requirements as described 

above for any information submitted 

through the Title XVII loan application 

process, including pre-applications, 

applications, and any additional 

information provided by loan 

applicants. Similarly, DOE proposes 

that the regulations implementing its 

Advanced Technology Vehicles 

Manufacturing (ATVM) Incentive 

Program at 10 CFR part 611 crossreference 10 CFR 600.15. DOE already 

applies to the ATVM program 

procedures virtually identical to those 

proposed in this notice. DOE here 

proposes to establish the marking 

requirements described above in the 

program’s implementing regulations. 

Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of a final regulatory flexibility analysis 

(FRFA) for any rule that by law must be 

proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. As required by 

Executive Order 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking’’ 67 FR 53461 (Aug. 

16, 2002), DOE published procedures 

and policies on February 19, 2003, to 

ensure that the potential impacts of its 

rules on small entities are properly 

considered during the rulemaking 

process. 68 FR 7990. DOE has made its 

procedures and policies available on the 

Office of the General Counsel’s Web site 

(http://www.gc.doe.gov). 

DOE has reviewed today’s proposed 

rule under the Regulatory Flexibility 

Act and certifies that, if adopted, the 

rule would not have a significant impact 

on a substantial number of small 

entities. While DOE recognizes that 

some applicants for assistance may be 

small businesses according to SBA size 

standards, DOE believes that the impact 

on such applicants of the proposed rule 

would not be significant. The proposed 

rule does not change the information 

applicants are required to submit to 

apply for the various forms of DOE 

assistance. It merely instructs applicants 

how to mark information that they 

believe to be trade secrets or commercial 

or financial information that is 

privileged or confidential. 

C. Review Under the Paperwork 

Reduction Act 

The information collection 

requirements for the various forms of 

assistance to which the marking 

requirements in this proposed rule 

would apply have been approved under 

OMB Control Numbers 1910–0400 

(Financial Assistance Regulations) and 

1910–5134 (Title XVII loan guarantee 

program). 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

D. Review Under the National 

Environmental Policy Act 

In this proposed rule, DOE proposes 

procedures for the submission of 

information relating to various forms of 

assistance, including grants, cooperative 

agreements, technology investment 

agreements, loans, and loan guarantees. 

DOE has determined that this rule falls 

into a class of actions that are 

categorically excluded from review 

under the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et 

seq.) and DOE’s implementing 

regulations at 10 CFR part 1021. 

Specifically, this proposed rule is a 

procedural rule covered by Categorical 

Exclusion A6 under 10 CFR part 1021, 

subpart D, which applies to any 

rulemaking that is strictly procedural in 

nature. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have other federalism implications. 

The Executive Order requires agencies 

to examine the constitutional and 

statutory authority supporting any 

action that would limit the 

policymaking discretion of the States 

and to carefully assess the necessity for 

such actions. The Executive Order also 

requires agencies to have an accountable 

process to ensure meaningful and timely 

input by State and local officials in the 

development of regulatory policies that 

have federalism implications. On March 

14, 2000, DOE published a statement of 

policy describing the intergovernmental 

consultation process it will follow in the 

development of such regulations. 65 FR 

13735. DOE has considered today’s 

proposed rule in accordance with 

Executive Order 13132 and its policy 

and determined that this proposed rule 

setting forth requirements for the 

marking of trade secrets and commercial 

or financial information that is 

privileged or confidential, if adopted, 

would not preempt State law or have 

any federalism impacts. No further 

action is required by Executive Order 

13132. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ imposes on Federal agencies 

the general duty to adhere to the 

following requirements: (1) Eliminate 

drafting errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. 61 FR 4729 

(February 7, 1996). Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 


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legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that 

this proposed rule meets the relevant 

standards of Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4) requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and Tribal 

governments and the private sector. For 

proposed regulatory actions likely to 

result in a rule that may cause 

expenditures by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish estimates of 

the resulting costs, benefits, and other 

effects on the national economy. (2 

U.S.C. 1532(a), (b).) UMRA also requires 

Federal agencies to develop an effective 

process to permit timely input by 

elected officers of State, local, and 

Tribal governments on a proposed 

‘‘significant intergovernmental 

mandate.’’ In addition, UMRA requires 

an agency plan for giving notice and 

opportunity for timely input to small 

governments that may be affected before 

establishing a requirement that might 

significantly or uniquely affect them. On 

March 18, 1997, DOE published a 

statement of policy on its process for 

intergovernmental consultation under 

UMRA. (62 FR 12820.) (This policy is 

also available at http://www.gc.doe.gov). 

Today’s proposed rule contains neither 

an intergovernmental mandate, nor a 

mandate that may result in the 

expenditure of $100 million or more in 

any year, so these requirements do not 

apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

proposed rule would not have any 

impact on the autonomy or integrity of 

the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

I. Review Under Executive Order 12630 

DOE has determined, under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights,’’ 53 FR 8859 

(March 18, 1988), that this regulation 

would not result in any takings which 

might require compensation under the 

Fifth Amendment to the U.S. 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516, note) 

provides for agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

today’s notice under the OMB and DOE 

guidelines and has concluded that it is 

consistent with applicable policies in 

those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OIRA at OMB a 

Statement of Energy Effects for any 

proposed significant energy action. A 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgates or is expected to lead to 

promulgation of a final rule, and that (1) 

is a significant regulatory action under 

Executive Order 12866 or any successor 

order; and (2) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy; or (3) is 

designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

DOE has concluded that today’s 

regulatory action, which would 

establish marking requirements for 

information submitted to DOE that the 

submitter believes to be trade secrets or 

commercial or financial information 

that is privileged or confidential, is not 

a significant energy action because the 

proposed standards are not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy, 

nor has it been designated as such by 

the Administrator at OIRA. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects for the proposed rule. 

L. Review Under the Information 

Quality Bulletin for Peer Review 

On December 16, 2004, OMB, in 

consultation with the Office of Science 

and Technology Policy, issued its Final 

Information Quality Bulletin for Peer 

Review (the Bulletin). 70 FR 2664 (Jan. 

14, 2005). The Bulletin establishes that 

certain scientific information shall be 

peer reviewed by qualified specialists 

before it is disseminated by the Federal 

Government, including influential 

scientific information related to agency 

regulatory actions. The purpose of the 

bulletin is to enhance the quality and 

credibility of the Government’s 

scientific information. DOE has 

determined that today’s proposed rule 

does not contain any influential or 

highly influential scientific information 

that would be subject to the peer review 

requirements of the OMB Bulletin. 

Approval of the Office of the Secretary 

The Secretary of Energy has approved 

publication of this proposed rule. 

List of Subjects in 10 CFR Parts 600, 

603, 609, and 611 

Accounting, Administrative practice 

and procedure, Colleges and 

universities, Confidential business 

information, Energy, Government 

contracts, Grant programs, Hospitals, 

Indians, Intergovernmental relations, 

Loan programs, Lobbying, Nonprofit 

organizations, Penalties, Reporting and 

recordkeeping requirements. 

Issued in Washington, DC, on March 7, 

2011. 

Steven Chu, 

Secretary of Energy. 

For the reasons stated in the 

preamble, DOE proposes to amend 

Subchapter H of Chapter II of Title 10, 

Code of Federal Regulations, to read as 

set forth below: 

PART 600—FINANCIAL ASSISTANCE 

RULES 

1. The authority citation for part 600 

continues to read as follows: 


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Authority: 42 U.S.C. 7101 et seq; 31 U.S.C. 

6301–6308; 50 U.S.C. 2401 et seq., unless 

otherwise noted. 

2. Section 600.15 is revised to read as 

follows: 

§ 600.15 Authorized uses of information. 

(a) General. Information contained in 

applications shall be used only for 

evaluation purposes unless such 

information is generally available to the 

public or is already the property of the 

Government. The Trade Secrets Act, 18 

U.S.C. 1905, prohibits the unauthorized 

disclosure by Federal employees of 

trade secret and confidential business 

information. 

(b) Treatment of application 

information. (1) An application or other 

document, including any unsolicited 

information, may include technical data 

and other data, including trade secrets 

and commercial or financial information 

that is privileged or confidential, which 

the applicant does not want disclosed to 

the public or used by the Government 

for any purpose other than application 

evaluation. 

(i) To protect such data, the submitter 

must mark the cover sheet of the 

application or other document with the 

following Notice: 

Notice of Restriction on Disclosure and Use 

of Data 

Pages [__] of this document may contain 

trade secrets or commercial or financial 

information that is privileged or confidential 

and is exempt from public disclosure. Such 

information shall be used or disclosed only 

for evaluation purposes or in accordance 

with a financial assistance or loan agreement 

between the submitter and the Government. 

The Government may use or disclose any 

information that is not appropriately marked 

or otherwise restricted, regardless of source. 

(ii) (A) To further protect such data, 

except as otherwise provided in 

paragraph (b)(1)(iii) of this section, each 

page containing trade secrets or 

commercial or financial information 

that is privileged or confidential must 

be specifically identified and marked 

with text similar to the following: 

May contain trade secrets or 

commercial or financial information 

that is privileged or confidential and 

exempt from public disclosure. 

(B) In addition, each line or paragraph 

containing trade secrets or commercial 

or financial information that is 

privileged or confidential must be 

marked with brackets or other clear 

identification, such as highlighting. 

(iii) (A) In the case where a form for 

data submission is unalterable, such as 

certain forms submitted through 

Grants.gov, submitters must include in 

a cover letter or the project narrative a 

notice like the following: 

Forms [__] may contain trade secrets or 

commercial or financial information that is 

privileged or confidential and exempt from 

public disclosure. Such information shall be 

used or disclosed only for evaluation 

purposes or in accordance with a financial 

assistance or loan agreement between the 

submitter and the Government. The 

Government may use or disclose any 

information that is not appropriately marked 

or otherwise restricted, regardless of source. 

(B) The cover letter or project 

narrative must also specify the 

particular information on such forms 

that the submitter believes contains 

trade secrets or commercial or financial 

information that is privileged or 

confidential. 

(2) Unless DOE specifies otherwise, 

DOE shall not refuse to consider an 

application or other document solely on 

the basis that the application or other 

document is restrictively marked in 

accordance with paragraph (b)(1) of this 

section. 

(3) Data (or abstracts of data) 

specifically marked in accordance with 

paragraph (b)(1) of this section shall be 

used by DOE or its designated 

representatives solely for the purpose of 

evaluating the proposal. The data so 

marked shall not be disclosed or used 

for any other purpose except to the 

extent provided in any resulting 

assistance agreement, or to the extent 

required by law, including the Freedom 

of Information Act (5 U.S.C. 552) (10 

CFR part 1004). The Government shall 

not be liable for disclosure or use of 

unmarked data and may use or disclose 

such data for any purpose. 

(4) This process enables DOE to 

follow the provisions of 10 CFR 

1004.11(d) in the event a Freedom of 

Information Act (5 U.S.C. 552) request is 

received for the data submitted, such 

that information not identified as 

subject to a claim of exemption may be 

released without obtaining the 

submitter’s views under the process set 

forth in 10 CFR 1004.11(c) 

PART 603—TECHNOLOGY 

INVESTMENT AGREEMENTS 

3. The authority citation for part 603 

continues to read as follows: 

Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 

6301–6308; 50 U.S.C. 2401 et seq., unless 

otherwise noted. 

4. Section 603.850 is revised to read 

as follows: 

§ 603.850 Marking of data. 

To protect the recipient’s interests in 

data, the TIA should require the 

recipient to mark any particular data 

that it wishes to protect from disclosure 

as specified in 10 CFR 600.15(b). 

PART 609—LOAN GUARANTEES FOR 

PROJECTS THAT EMPLOY 

INNOVATIVE TECHNOLOGIES 

5. The authority citation for part 609 

continues to read as follows: 

Authority: 42 U.S.C. 7254, 16511–16514. 

6. Section 609.4 is amended by 

revising the introductory text to read as 

follows: 

§ 609.4 Submission of Pre-Applications. 

In response to a solicitation 

requesting the submission of PreApplications, either Project Sponsors or 

Applicants may submit PreApplications to DOE. The information 

submitted in or in connection with PreApplications will be treated as provided 

in 10 CFR 600.15 and must be marked 

as provided in 10 CFR 600.15(b). PreApplications must meet all 

requirements specified in the 

solicitation and this part. At a 

minimum, each Pre-Application must 

contain all of the following: 

* * * * * 

7. Section 609.5 is amended by 

revising paragraph (d) to read as 

follows: 

§ 609.5 Evaluation of Pre-Applications. 

* * * * * 

(d) After the evaluation described in 

paragraph (c) of this section, DOE will 

determine if there is sufficient 

information in the Pre-Application to 

assess the technical and commercial 

viability of the proposed project and/or 

the financial capability of the Project 

Sponsor and to assess other aspects of 

the Pre-Application. DOE may ask for 

additional information from the Project 

Sponsor during the review process and 

may request one or more meetings with 

the Project Sponsor. Any additional 

information submitted will be treated as 

provided in 10 CFR 600.15 and must be 

marked as provided in 10 CFR 

600.15(b). 

* * * * * 

8. Section 609.6 is amended by 

revising paragraph (a) to read as follows: 

§ 609.6 Submission of Applications. 

(a) In response to a solicitation or 

written invitation to submit an 

Application, an Applicant submitting an 

Application must meet all requirements 

and provide all information specified in 

the solicitation and/or invitation and 

this part. The information submitted in 

or in connection with Applications will 

be treated as provided in 10 CFR 600.15 

and must be marked as provided in 10 

CFR 600.15(b). 

* * * * * 

9. Section 609.7 is amended by 

revising paragraph (c) to read as follows: 


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§ 609.7 Programmatic, technical and 

financial evaluation of Applications. 

* * * * * 

(c) During the Application review 

process DOE may raise issues or 

concerns that were not raised during the 

Pre-Application review process where a 

Pre-Application was requested in the 

applicable solicitation. Any additional 

information submitted to DOE will be 

treated as provided in 10 CFR 600.15 

and must be marked as provided in 10 

CFR 600.15(b). 

* * * * * 

PART 611—ADVANCED TECHNOLOGY 

VEHICLES MANUFACTURER 

ASSISTANCE PROGRAM 

10. The authority citation for part 611 

continues to read as follows: 

Authority: Pub.L. 110–140 (42 U.S.C. 

17013), Pub. L. 110–329. 

11. Section 611.101 is amended by 

revising the introductory text to read as 

follows: 

§ 611.101 Application. 

The information and materials 

submitted in or in connection with 

applications will be treated as provided 

in 10 CFR 600.15 and must be marked 

as provided in 10 CFR 600.15(b). An 

application must include, at a 

minimum, the following information 

and materials: 

* * * * * 

12. Section 611.103 is amended by 

revising paragraph (a) to read as follows: 

§ 611.103 Application evaluation. 

(a) Eligibility screening. Applications 

will be reviewed to determine whether 

the applicant is eligible, the information 

required under § 611.101 is complete, 

and the proposed loan complies with 

applicable statutes and regulations. DOE 

can at any time reject an application, in 

whole or in part, that does not meet 

these requirements. Any additional 

information submitted to DOE will be 

treated as provided in 10 CFR 600.15 

and must be marked as provided in 10 

CFR 600.15(b). 

* * * * * 

[FR Doc. 2011–5677 Filed 3–10–11; 8:45 am] 

BILLING CODE 6450–01–P 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Part 4022 

RIN 1212–AB18 

Benefits Payable in Terminated SingleEmployer Plans; Limitations on 

Guaranteed Benefits 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Proposed rule. 

SUMMARY: This is a proposed rule to 

amend PBGC’s regulation on Benefits 

Payable in Terminated Single-Employer 

Plans. That regulation sets forth rules on 

PBGC’s guarantee of pension plan 

benefits, including rules on the phasein of the guarantee. The amendments 

implement section 403 of the Pension 

Protection Act of 2006, which provides 

that the phase-in period for the 

guarantee of benefits that are contingent 

upon the occurrence of an 

‘‘unpredictable contingent event,’’ such 

as a plant shutdown, starts no earlier 

than the date of the shutdown or other 

unpredictable contingent event. 

DATES: Comments must be received on 

or before May 10, 2011. 

ADDRESSES: Comments should be 

identified by Regulation Information 

Number (RIN 1212–AB18), and may be 

submitted by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Follow the Web site instructions for 

submitting comments. 

• E-mail: reg.comments@pbgc.gov. 

• Fax: 202–326–4224. 

• Mail or Hand Delivery: Legislative 

and Regulatory Department, Pension 

Benefit Guaranty Corporation, 1200 K 

Street, NW., Washington, DC 20005– 

4026. 

PBGC will make all comments available 

on its Web site, http://www.pbgc.gov. 

Copies of comments also may be 

obtained by writing PBGC’s 

Communications and Public Affairs 

Department (CPAD) at Suite 240 at the 

above address or by visiting or calling 

CPAD during normal business hours 

(202–326–4040). 

FOR FURTHER INFORMATION CONTACT: John 

H. Hanley, Director; Gail A. Sevin, 

Manager; or Bernard Klein, Attorney; 

Legislative & Regulatory Department, 

Pension Benefit Guaranty Corporation, 

1200 K Street, NW., Washington, DC 

20005, 202–326–4224. (TTY/TDD users 

may call the Federal relay service tollfree at 1–800–877–8339 and ask to be 

connected to 202–326–4224.) 

SUPPLEMENTARY INFORMATION: 

Background 

The Pension Benefit Guaranty 

Corporation (PBGC) administers the 

single-employer pension plan 

termination insurance program under 

Title IV of the Employee Retirement 

Income Security Act of 1974 (ERISA). 

The program covers certain privatesector, single-employer defined benefit 

plans, for which premiums are paid to 

PBGC each year. 

Covered plans that are underfunded 

may terminate either in a distress 

termination under section 4041(c) of 

ERISA or in an involuntary termination 

(one initiated by PBGC) under section 

4042 of ERISA. When such a plan 

terminates, PBGC typically is appointed 

statutory trustee of the plan, and 

becomes responsible for paying benefits 

in accordance with the provisions of 

Title IV. 

Under sections 4022(b)(1) and 

4022(b)(7) of ERISA and §§ 4022.24 

through .26 of PBGC’s regulation on 

Benefits Payable in Terminated SingleEmployer Plans, 29 CFR part 4022, 

PBGC’s guarantee of new pension 

benefits and benefit increases is ‘‘phased 

in’’ over a five-year period, which begins 

on the date the new benefit or benefit 

increase is adopted or effective 

(whichever is later). 

On August 17, 2006, the Pension 

Protection Act of 2006, Public Law 109– 

280 (PPA 2006), was signed into law. 

Section 403 of PPA 2006 amended 

section 4022 of ERISA by adding a new 

section 4022(b)(8), which changes the 

start of the phase-in period for plant 

shutdown and other ‘‘unpredictable 

contingent event benefits’’ (UCEBs). 

Under new section 4022(b)(8), the 

phase-in rules are applied as if a plan 

amendment creating a UCEB was 

adopted on the date the unpredictable 

contingent event (‘‘UCE’’) occurred 

rather than as of the actual adoption 

date of the amendment, which is almost 

always earlier. As a result of the new 

provision, the guarantee of benefits 

arising from plant shutdowns and other 

UCEs that occur within 5 years of plan 

termination (or the date the plan 

sponsor entered bankruptcy, if 

applicable under PPA 2006, as 

explained below) generally will be 

lower than under prior law. This new 

provision, which does not otherwise 

change the existing phase-in rules, 

applies to benefits that become payable 

as a result of a UCE that occurs after July 

26, 2005. 

This proposed rule would amend part 

4022 to implement the PPA 2006 

changes to the guarantee of UCEBs. 

With one exception, explained below 

under the heading ‘‘Bankruptcy filing 


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