Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Rules and Regulations 12101

(Pub. L. 104–4), or require prior

consultation with State officials as

specified by Executive Order 12875 (58

FR 58093, October 28, 1993), or involve

special consideration of environmental

justice related issuess as required by

Executive Order 12898 (59 FR 7629,

February 16, 1994).

Because this action is not subject to

notice-and-comment requirements

under the Administrative Procedure Act

or any other statute, it is not subject to

the provisions of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.).

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of this rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

Authority: This notice is issued under the

authority of Sections 2002(a), 3006 and

7004(b) of the Solid Waste Disposal Act as

amended 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: February 11, 1997.

Jerry Clifford,

Acting Regional Administrator.

[FR Doc. 97–6511 Filed 3–13–97; 8:45 am]

BILLING CODE 6560–50–P

LEGAL SERVICES CORPORATION

45 CFR Part 1610

Use of Non-LSC Funds

AGENCY: Legal Services Corporation.

ACTION: Interim rule with request for

comments.

SUMMARY: This interim rule revises the

Legal Services Corporation’s

(‘‘Corporation’’ or ‘‘LSC’’) rule

concerning the use of non-LSC funds by

LSC recipients. The revisions are

intended to address constitutional

challenges raised by the previous rule,

and to ensure that no LSC-funded entity

engages in restricted activities. This

revised rule deletes the provisions on

transfers of non-LSC funds and adds a

new section setting out standards for the

integrity of recipient programs.

DATES: The interim rule is effective on

March 14, 1997. Comments must be

submitted on or before April 14, 1997.

ADDRESSES: Comments should be

submitted to the Office of the General

Counsel, Legal Services Corporation,

750 First St. NE., 11th Floor,

Washington, DC 20002–4250.

FOR FURTHER INFORMATION CONTACT:

Victor Fortuno, General Counsel, (202)

336–8910.

SUPPLEMENTARY INFORMATION: On

December 2, 1996, the Corporation

published a completely revised final

rule to implement Section 504 in the

Corporation’s FY 1996 appropriations

act, Pub. L. 104–134, 110 Stat. 1321

(1996), as incorporated by the

Corporation’s FY 1997 appropriations

act, Pub. L. 104–208, 110 Stat. 3009.

Section 504 applies certain restrictions

to any person or entity receiving LSC

funds, effectively restricting the use of

virtually all of a recipient’s funds to the

same degree that it restricts LSC funds.

Although not required to by law, the

Corporation extended the restrictions on

a recipient’s funds to a transfer of a

recipient’s non-LSC funds. Thus, the

rule required that when a recipient

transferred its non-LSC funds to an

entity that had no LSC funds, the

conditions would remain attached to the

transferred funds. However, the other

funds of the entity would not be

affected.

In January 1997, five legal services

recipients in Hawaii, Alaska, and

California, together with two of their

program lawyers, two non-federal

funders and a client organization, filed

suit in the United States District Court

for the District of Hawaii challenging a

number of the Section 504 restrictions

as unconstitutional conditions on their

use of non-LSC funds. Legal Aid Society

of Hawaii, et al. v. Legal Services

Corporation, Civil Action No. 97–00032

ACK. On February 14, 1997, the Court

entered an order which preliminarily

enjoined the Corporation from enforcing

restrictions on the recipients’’ use of

non-LSC funds for certain restrictions as

to which the Court determined that the

plaintiffs’’ had a fair likelihood of

demonstrating an infringement of First

Amendment rights. The Court’s

preliminary ruling was grounded in

pertinent part on its understanding of

the Corporation’s interrelated

organization policy, but also implicated

the expansive reach of the Corporation’s

restrictions on non-LSC funds. The

effect of the preliminary order is to

allow those recipients who are plaintiffs

in the case to use their non-LSC funds

to engage in certain prohibited activities

within their recipient programs during

the interim period before a trial on the

merits and a final ruling by the judge.

This creates at least a temporary

situation clearly at odds with

congressional intent.

The Corporation has reviewed its

policies and regulations and is making

certain limited adjustments, which are

intended both to preserve the statutory

system created by Congress that forbids

recipients from engaging in prohibited

activities and subsidizing prohibited

activities with LSC funds and to

respond to the constitutional concerns

addressed by the Court. In making these

limited revisions, the Corporation is

acting to reinforce its commitment to

the statutory structure of prohibitions

and restrictions intended by Congress

without risking the possible

infringement of constitutional rights

where the prohibited activities are

supported entirely by non-LSC funds

and carried out without subsidization

by the LSC grantee. Under the Court’s

decision, an LSC-funded entity can

engage in restricted activities. While

recognizing that this initial decision is

not dispositive of the issue, the

Corporation is mindful that Congress

clearly intended to assure that no LSCfunded entity engage in restricted

activities.

The Operations and Regulations

Committee (‘‘Committee’’) of the

Corporation’s Board of Directors

(‘‘Board’’) held public hearings on this

matter and considered a draft interim

rule on March 7, 1997. The Committee

recommended and the Board agreed on

March 8, 1997, to publish this revised

rule as an interim rule. An interim rule

is necessary in order to provide prompt

and critically necessary guidance to LSC

recipients on the revised legal status of

these regulations, address the alleged

constitutional infirmities, and yet

preserve the integrity of LSC-funded

programs consistent with congressional

intent. Accordingly, prior notice and

public comment are impracticable,

unnecessary, and contrary to the public

interest. See 5 U.S.C. Sections

553(b)(3)(B) and 553(d)(3). This rule is

effective upon publication. However,

the Corporation also solicits comment

on this interim rule for review and

consideration by the Committee and

Board. After receipt of written public

comment, the Committee intends to

hold public hearings to discuss the

written comments and to hear oral

comments. It is anticipated that a final

rule will be issued, which will

supersede this interim rule.

Generally, this rule deletes provisions

in Section 1610.7 on the transfer of nonLSC funds and adds a new section

dealing with the integrity of recipient

programs. This section also formally

replaces and nullifies Section 1–7 of the

Corporation’s 1986 Audit and

Accounting Guide, which sets out the

Corporation’s policy on interrelated

organizations.

A section-by-section analysis is

provided below.
12102 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Rules and Regulations

Section 1610.1 Purpose

The purpose section is revised to

reflect congressional intent that no LSCfunded organization engage in any

restricted activities.

Section 1610.7 Transfers of funds

The provisions on the transfer of nonLSC funds are deleted from this section.

The new § 1610.8, which sets out

standards to ensure the integrity of the

recipient program, has been added.

Section 1610.8 Program Integrity of

Recipient

The purpose of this new section is to

ensure the integrity of recipient

programs. It provides that this part’s

restrictions on non-LSC funds will be

applied to an organization found to be

interrelated with a recipient such that it

controls, is controlled by or is subject to

common control with another

organization, unless the recipient can

demonstrate that it meets this part’s

standards of program integrity. This

new policy on program integrity is

based in part on the Corporation’s

policy on interrelated organizations,

which is modified in this rule to allow

recipients to have an affiliation or

relationship with separate organizations

which may engage in prohibited

activities funded solely with non-LSC

funds, provided that the standards for

program integrity in this rule are met.

The standards of program integrity

require that there be a wall of separation

between the recipient and another

organization so that LSC funds will not

be used to subsidize prohibited

activities. Thus, although the recipient’s

governing body could control the other

organization, the separate and distinct

integrity of the recipient program is

required to be maintained.

Paragraph (a) of this section

essentially reflects the Corporation’s old

policy on interrelated organizations. It

states that if a recipient controls, is

controlled by or is subject to common

control with another organization, the

two organizations will be found to be

interrelated and will be subject to the

restrictions of this part unless they meet

the standards of program integrity in

paragraph (b). ‘‘Control’’ is defined as

the ability to determine or influence the

management or policies of another

organization. The test for determining

whether such control exists is largely

the same as in the old interrelated

policy, with a few adjustments that are

reflected in the Section 1610.8(a)(3).

The old policy stated that a

determination of interrelatedness will

be based on the totality of the facts and

that no one factor would be

determinative. This new rule retains

this provision except that it cites one

factor that is determinative of

interrelatedness. If there is an overlap of

officers and directors such that the

governing body of one organization

includes enough representatives of the

other to cause or prevent action by the

other, interrelated status will be found.

Nevertheless, this interrelation does not

automatically mean that the restrictions

of this part will be applied to both

organizations. The restrictions would

only be applied if the standards of

program integrity in paragraph (b) are

not met.

Paragraph (b) sets out the standards of

program integrity. First, the other

organization must not receive any LSC

funds. Second, the relationship of the

recipient with the other organization

must be approved by the recipient’s

governing body. This ensures that it is

the local board, which is governed by

the Corporation’s governing body

regulation, 45 CFR Part 1607, rather

than a recipient’s staff or management,

that approves the relationship. The third

standard requires clear physical and

financial separation of the recipient

from the other organization such that

the recipient must have an objective

integrity and independence. Factors

considered to determine whether such

objective integrity and independence

exist include the existence of separate

personnel, the existence of separate

accounting and timekeeping records, the

existence of separate facilities, and the

extent to which signs or other forms of

identification distinguish the recipient

from the organization. Determinations

taking into account these standards are

necessary to ensure that there is no

identification of the recipient with

restricted activities and that the other

organization is not a sham or paper

organization and is not so closely

identified with the recipient that there

might be confusion or misunderstanding

about the recipient’s involvement with

or endorsement of prohibited activities.

List of Subjects in 45 CFR Part 1610

Grant programs, Legal services.

For reasons set forth in the preamble,

LSC revises 45 CFR Part 1610 to read as

follows:

PART 1610—USE OF NON-LSC FUNDS

Sec.

1610.1 Purpose.

1610.2 Definitions.

1610.3 Prohibition.

1610.4 Authorized use of other funds.

1610.5 Notification.

1610.6 Applicability.

1610.7 Transfers of recipient funds.

1610.8 Program integrity of recipient.

1610.9 Accounting.

Authority: 42 U.S.C. 2996i; Pub. L. 104–

208, 110 Stat. 3009 Pub. L. 104–134 110 Stat.

1321 (1996).

§ 1610.1 Purpose.

This part is designed to implement

statutory restrictions on the use of nonLSC funds by LSC recipients and to

ensure that no LSC-funded entity shall

engage in any activities restricted by

this part.

§ 1610.2 Definitions.

(a) Purpose prohibited by the LSC Act

means any activity prohibited by the

following sections of the LSC Act and

those provisions of the Corporation’s

regulations that implement such

sections of the Act:

(1) Sections 1006(d)(3), 1006(d)(4),

1007(a)(6), and 1007(b)(4) of the LSC

Act and 45 CFR part 1608 of the LSC

Regulations (Political activities);

(2) Section 1007(a)(10) of the LSC Act

(Activities inconsistent with

professional responsibilities);

(3) Section 1007(b)(1) of the LSC Act

and 45 CFR part 1609 of the LSC

regulations (Fee-generating cases);

(4) Section 1007(b)(2) of the LSC Act

and 45 CFR part 1613 of the LSC

Regulations (Criminal proceedings);

(5) Section 1007(b)(3) of the LSC Act

and 45 CFR part 1615 of the LSC

Regulations (Actions challenging

criminal convictions);

(6) Section 1007(b)(7) of the LSC Act

and 45 CFR part 1612 of the LSC

Regulations (Organizing activities);

(7) Section 1007(b)(8) of the LSC Act

(Abortions);

(8) Section 1007(b)(9) of the LSC Act

(School desegregation); and

(9) Section 1007(b)(10) of the LSC Act

(Violations of Military Selective Service

Act or military desertion).

(b) Activity prohibited by or

inconsistent with Section 504 means any

activity prohibited by, or inconsistent

with the requirements of, the following

sections of 110 Stat. 1321 (1996) and

those provisions of the Corporation’s

regulations that implement those

sections:

(1) Section 504(a)(1) and 45 CFR part

1632 of the LSC Regulations

(Redistricting);

(2) Sections 504(a)(2) through (6), as

modified by Sections 504(b) and (e), and

45 CFR part 1612 of the LSC Regulations

(Legislative and administrative

advocacy);

(3) Section 504(a)(7) and 45 CFR part

1617 of the LSC Regulations (Class

actions);

(4) Section 504(a)(8) and 45 CFR part

1636 of the LSC Regulations (Statement

of facts and client identification);
Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Rules and Regulations 12103

(5) Section 504(a)(9) and 45 CFR part

1620 of the LSC Regulations (Priorities);

(6) Section 504(a)(10) and 45 CFR part

1635 of the LSC Regulations

(Timekeeping);

(7) Section 504(a)(11) and 45 CFR part

1626 of the LSC Regulations (Aliens);

(8) Section 504(a)(12) and 45 CFR part

1612 of the LSC Regulations (Public

policy training);

(9) Section 504(a)(13) and 45 CFR part

1642 of the LSC Regulations (Attorneys’

fees);

(10) Section 504(a)(14) (Abortion

litigation);

(11) Section 504(a)(15) and 45 CFR

part 1637 of the LSC Regulations

(Prisoner litigation);

(12) Section 504(a) (16), as modified

by Section 504(e), and 45 CFR part 1639

of the LSC Regulations (Welfare reform);

(13) Section 504(a)(17) and 45 CFR

part 1633 of the LSC Regulations (Drugrelated evictions); and

(14) Section 504(a)(18) and 45 CFR

part 1638 of the LSC Regulations (Inperson solicitation).

(c) IOLTA funds means funds derived

from programs established by State

court rules or legislation that collect and

distribute interest on lawyers’ trust

accounts.

(d) Non-LSC funds means funds

derived from a source other than the

Corporation.

(e) Private funds means funds derived

from an individual or entity other than

a governmental source or LSC.

(f) Public funds means non-LSC funds

derived from a Federal, State, or local

government or instrumentality of a

government. For purposes of this part,

IOLTA funds shall be treated in the

same manner as public funds.

(g) Transfer means a transfer of a

recipient’s funds for the purpose of

conducting programmatic activities that

are normally conducted by the

recipient, such as the representation of

eligible clients, or that provide direct

support to the recipient’s legal

assistance activities.

(h) Tribal funds means funds received

from an Indian tribe or from a private

nonprofit foundation or organization for

the benefit of Indians or Indian tribes.

§ 1610.3 Prohibition.

A recipient may not use non-LSC

funds for any purpose prohibited by the

LSC Act or for any activity prohibited

by or inconsistent with Section 504,

unless such use is authorized by

§§ 1610.4, 1610.6 or 1610.7 of this part.

§ 1610.4 Authorized use of other funds.

(a) A recipient may receive tribal

funds and expend them in accordance

with the specific purposes for which the

tribal funds were provided.

(b) A recipient may receive public or

IOLTA funds and use them in

accordance with the specific purposes

for which they were provided, if the

funds are not used for any activity

prohibited by or inconsistent with

Section 504.

(c) A recipient may receive private

funds and use them in accordance with

the purposes for which they were

provided, provided that the funds are

not used for any activity prohibited by

the LSC Act or prohibited or

inconsistent with Section 504.

(d) A recipient may use non-LSC

funds to provide legal assistance to an

individual who is not financially

eligible for services under part 1611 of

this chapter, provided that the funds are

used for the specific purposes for which

those funds were provided and are not

used for any activity prohibited by the

LSC Act or prohibited by or inconsistent

with Section 504.

§ 1610.5 Notification.

(a) Except as provided in paragraph

(b) of this section, no recipient may

accept funds from any source other than

the Corporation, unless the recipient

provides to the source of the funds

written notification of the prohibitions

and conditions which apply to the

funds.

(b) A recipient is not required to

provide such notification for receipt of

contributions of less than $250.

§ 1610.6 Applicability.

Notwithstanding § 1610.7(a), the

prohibitions referred to in

§§ 1610.2(a)(4) (Criminal proceedings),

(a)(5) (Actions challenging criminal

convictions), (b)(7) (Aliens) or (b)(11)

(Prisoner litigation) of this part will not

apply to:

(a) A recipient’s or subrecipient’s

separately funded public defender

program or project; or

(b) Criminal or related cases accepted

by a recipient or subrecipient pursuant

to a court appointment.

§ 1610.7 Transfers of recipient funds.

(a) For a transfer of LSC funds, the

prohibitions and requirements referred

to in this part, except as modified by

paragraphs (b) and (c) of this section,

will apply both to the funds transferred

and to the non-LSC funds of the person

or entity.

(b)(1) In regard to the requirement in

§ 1610.2(b)(5) on priorities, persons or

entities receiving a transfer of LSC funds

shall either:

(i) use the funds transferred consistent

with the recipient’s priorities; or

(ii) establish their own priorities for

the use of the funds transferred

consistent with 45 CFR part 1620;

(2) In regard to the requirement in

§ 1610.2(b)(6) on timekeeping, persons

or entities receiving a transfer of LSC

funds are required to maintain records

of time spent on each case or matter

undertaken with the funds transferred.

(c) For a transfer of LSC funds to bar

associations, pro bono programs, private

attorneys or law firms, or other entities

for the sole purpose of funding private

attorney involvement activities (PAI)

pursuant to 45 CFR part 1614, the

prohibitions or requirements of this part

shall apply only to the funds

transferred.

§ 1610.8 Program integrity of recipient.

(a) If a recipient controls, is controlled

by or is subject to common control with

another organization, the two

organizations are interrelated

organizations and the restrictions in this

part will be applied to both

organizations, unless the association

between the two organizations meets the

standards of program integrity in

paragraph (b) of this section.

(1) Control means the direct or

indirect ability to determine the

direction of management and policies or

influence the management or policies of

another organization.

(2) Factors considered to determine

whether control exists are:

(i) The extent and pattern of any

overlap of officers, directors, or other

managers between two organizations;

(ii) The contractual and financial

relationships (especially in terms of the

proportion of the organization’s funds or

resources that are provided by the

possibly controlling organization);

(iii) The history of relationships

among the organizations (e.g., the fact

that one organization provided initial

funding and named initial director of

another would be a relevant fact; as

would facts relating to decision-making

on policies or transactions of mutual

interest; actual control of particular

decisions);

(iv) A close identity of interest;

(v) One organization has become a

mere conduit, ‘‘incorporation

pocketbook,’’ or ‘‘straw’’ party for

another;

(vi) Funds are solicited by a separate

entity in the name of and with the

expressed or implicit approval of the

recipient and substantially all of the

funds solicited are intended by the

contributor or are otherwise required to

be transferred to the recipient or used at

its discretion or direction;

(vii) A recipient transfers resources to

another entity that holds these resources

for the benefit of the recipient; and

(viii) A recipient assigns functions to

an entity whose funding is primarily
12104 Federal Register / Vol. 62, No. 50 / Friday, March 14, 1997 / Rules and Regulations

derived from sources other than public

contributions.

(3) A determination of

interrelatedness will be based on the

totality of the facts and the presence or

absence of any one or more factors is not

determinative, except that an overlap of

officers and directors such that the

governing body of one organization

includes enough representatives of the

other to cause or prevent action by the

other will be determinative that the

organizations are interrelated.

(b) The restrictions in this part will

not be applied to an organization found

to be interrelated pursuant to paragraph

(a) if:

(1) The organization receives no LSC

funds, and LSC funds do not directly or

indirectly subsidize restricted activities;

(2) The relationship with the

organization is approved by the

recipient’s governing body; and

(3) The recipient is physically and

financially separate from the

organization. Mere bookkeeping

separation of LSC funds from other

funds is not sufficient. In order to be

physically and financially separate, the

recipient and the organization must

have an objective integrity and

independence from one another. Factors

considered to determine whether such

objective integrity and independence

exist shall include, but are not limited

to:

(i) The existence of separate

personnel;

(ii) The existence of separate

accounting and timekeeping records;

(iii) The existence of separate

facilities; and

(iv) The extent to which signs and

other forms of identification which

distinguish the recipient from the

organization are present.

§ 1610.9 Accounting.

Funds received by a recipient from a

source other than the Corporation shall

be accounted for as separate and distinct

receipts and disbursements in a manner

directed by the Corporation.

Dated: March 11, 1997.

Victor M. Fortuno,

General Counsel.

[FR Doc. 97–6542 Filed 3–13–97; 8:45 am]

BILLING CODE 7050–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 95–142; RM–8685]

Radio Broadcasting Services; Zapata,

TX

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the

request of Arturo Lopez, allots Channel

228A at Zapata, Texas, as the

community’s first local FM service. See

60 FR 46562, September 7, 1995.

Channel 228A can be allotted to Zapata

in compliance with the Commission’s

minimum distance separation

requirements without the imposition of

a site restriction. The coordinates for

Channel 228A at Zapata are 26–54–30

NL and 99–16–18 WL. Since Zapata is

located within 320 kilometers (199

miles) of the U.S.-Mexican border,

concurrence of the Mexican government

has been obtained for this

allotment.With this action, this

proceeding is terminated.

DATES: Effective April 21, 1997. The

window period for filing applications

will open on April 21, 1997, and close

on May 22, 1997.

FOR FURTHER INFORMATION CONTACT: Pam

Blumenthal, Mass Media Bureau, (202)

418–2180.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 95–142,

adopted February 26, 1997, and released

March 7, 1997. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M Street, NW,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

ITS, Inc., (202) 857–3800, 2100 M

Street, NW, Suite 140, Washington, DC

20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: Secs. 303, 48 Stat., as amended,

1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Texas, is amended by

adding Zapata, Channel 228A.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 97–6429 Filed 3–13–97; 8:45 am]

BILLING CODE 6712–01–F

47 CFR Part 73

[MM Docket No. 96–122; RM–8795; RM–

8860]

Radio Broadcasting Services;

Riverdale and Huron, CA

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document dismisses a

petition for rule making filed by Happy

Nice Valley Broadcasting requesting the

allotment of Channel 252A to Riverdale,

California, as that locality’s first local

aural transmission service (RM–8795).

The proposal is dismissed based upon

the lack of interest by the petitioner or

any other interested party to provide

information, as requested, to establish

that Riverdale constitutes a bona fide

‘‘community’’, as that term is defined

for purposes of Section 307(b) of the

Communications Act, as amended by

the Telecommunications Act of 1996,

for allotment objectives. See 61 FR

30585, June 17, 1996. However, in

response to a counterproposal filed by

Radio Coalinga Latino, Channel 252A is

allotted to the incorporated community

of Huron, California, as that locality’s

first local aural transmission service

(RM–8860). Coordinates used for

Channel 252A at Huron, California, are

36–15–41 and 120–04–19. With this

action, the proceeding is terminated.

DATES: Effective April 21, 1997. The

window period for filing applications

on Channel 252A at Huron, California,

will open on April 21, 1997, and close

on May 22, 1997.

FOR FURTHER INFORMATION CONTACT:

Nancy Joyner, Mass Media Bureau, (202)

418–2180. Questions related to the

window application filing process for

Channel 252A at Huron, California,

should be addressed to the Audio

Services Division, (202) 418–2700.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 96–122,

adopted February 26, 1997, and released

March 7, 1997. The full text of this

Commission decision is available for