Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0858; Directorate Identifier 2008-NM-054-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received numerous reports of cracks in the skins and stringers at the end fasteners common to the stringer end fittings at station Xw = 408 and Xw = −408 wing splice joints. Results of an investigation conducted by Boeing Engineering revealed the cracks were due to fatigue. The area where the cracks were found is identified as a principal structural element (PSE). The earliest cracks were discovered at 21,519 total flight cycles, and 58,935 total flight hours. The cracks were discovered by visual inspections and findings of fuel leaks. In addition to unscheduled maintenance for repair of the PSE, this condition, if not corrected, could result in wing structure that might not sustain limit load, and consequent loss of structural integrity of the wing.

We have reviewed Boeing Alert Service Bulletin DC8-57A102, dated February 12, 2008. The service bulletin describes the following procedures.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Bulletin.”

The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• Using a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.

We estimate that this proposed AD would affect 87 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866,

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

HUD's regulations at 24 CFR part 15 describe the policies and procedures governing public access to HUD records under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the policies and procedures governing the production of material or provision of testimony by HUD employees. On February 26, 2007 (72 FR 8580), HUD published a final rule to clarify and explain the various types of requests for HUD documents and testimony by HUD employees that are intended to be covered by HUD's document production and testimony approval regulations. The final rule revised subparts C and D to describe the procedures to be followed by a party in making a demand to HUD for documents or testimony, and to explain the standards followed by HUD in determining whether production or testimony should be permitted. A technical correction to the final rule was published on September 20, 2007 (72 FR 53876).

After implementing the revised procedures for consideration of demands for documents or testimony, HUD has determined that additional changes are necessary to ensure the careful and efficient processing of all such demands. The revisions proposed to be made to HUD's regulations at 24 CFR part 15 are as follows:

This proposed rule would amend § 15.2 to add, in alphabetical order, the terms “Appropriate Associate General Counsel,” “Appropriate Regional Counsel,” and “Authorized Approving Official” to the list of definitions.

This proposed rule would correct outdated references to Web sites in §§ 15.102(b) and 15.103(c). This proposed rule would also make technical changes to Appendix A of part 15 by directing the public to HUD's Web site to update the location information of HUD FOIA Reading Rooms and by providing the public with the contact information of HUD's Regional Counsel.

This proposed rule would amend § 15.201 by providing guidance to persons engaged in private litigation, to which the United States is not a party, on the procedures to be followed when making a demand for documents or testimony on HUD. This proposed rule would provide that HUD's regulations in subpart C do not create any affirmative right or benefit, substantive or procedural, that would be enforceable against HUD.

This proposed rule would amend §§ 15.202 through 15.206 by outlining the procedures for making a demand for production of material or provision of testimony to HUD, and by delegating authority to officials at the Associate General Counsel, Regional Counsel, and Authorized Approving Official level to consider and approve demands for testimony or for documents. These officials are in the best position to evaluate the demands for testimony or documents and have previously been authorized to consider such demands through a delegation of authority. Additionally, this proposed rule would modify the criteria used to consider demands in order to allow for more efficient processing of these demands and to ensure that all legally cognizable objections to the release of the information are considered.

This proposed rule would amend §§ 15.302 through 15.304, and add a new § 15.305, to address the production of material or provision of testimony in response to demands in legal proceedings in which the United States is a party. The proposed rule would prohibit the production of material or testimony, unless the prior approval of the attorney representing the United States has been obtained. The proposed rule would require the employee to immediately notify the Appropriate Associate General Counsel or Appropriate Regional Counsel of the demand, and consideration of such demands would be within the purview of the attorney representing the United States. Finally, the proposed rule would permit the Department to respond to authorized productions of material or testimony by producing authenticated copies of the documents, which shall serve to conform to the Federal Rules of Civil Procedure.

The proposed information collection requirements contained in this rule have been submitted to the Office of Management and Budget (OMB) for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Under this Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a valid control number.

The public reporting burden for this collection of information is estimated to include the time for reviewing the instructions, for gathering and preparing the information required to be included in demands, and for completing and reviewing the information to be provided.

The following table provides information on the estimated public reporting burden:

In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology ( e.g. , permitting responses to be submitted electronically).

Interested persons are invited to submit comments regarding the information collection requirements in this proposal. Comments must refer to the proposal by the proposal's name and docket number (FR-5206-P-01) and must be sent to:

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and subject to comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The regulatory amendments that would be made by this proposed rule are procedural and serve to advise on the process and procedures engaged in by the Department when producing material or providing testimony in response to demands in legal proceedings.

Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.

This proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from the requirements of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule does not impose any federal mandates on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.

Accordingly, for the reasons discussed in the preamble, HUD proposes to amend 24 CFR part 15 to read as follows:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographic features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

TTB received a petition from Wes Hagen, Vineyard Manager and Winemaker at Clos Pepe Vineyards, Lompoc, California, on behalf of Happy Canyon vintners and grape growers, proposing the establishment of the “Happy Canyon of Santa Barbara” American viticultural area. According to the petitioner, the proposed viticultural area encompasses 23,941 acres, 492 acres of which are in commercial viticulture in 6 vineyards. It is entirely within the Santa Ynez Valley viticultural area (27 CFR 9.54), which in turn is completely within the multicounty Central Coast viticultural area (27 CFR 9.75).

The petitioner states that the viticulture of the proposed Happy Canyon of Santa Barbara viticultural area, in eastern Santa Ynez Valley, is distinguishable from that of the rest of the valley, including the Sta. Rita Hills viticultural area (27 CFR 9.162), in western Santa Ynez Valley. We summarize below the supporting evidence submitted with the petition.

According to the petitioner and USGS maps, the “Happy Canyon of Santa Barbara” name applies to a canyon located in Santa Barbara County. TTB notes that a search of the U.S. Geological Survey Geographical Names Information System (GNIS) includes ten hits for “Happy Canyon,” three of which are in California. The petitioner originally considered Happy Canyon for the name of the proposed viticultural area. However, based on results of the GNIS search, TTB determined that the Happy Canyon name would require a geographical modifier to pinpoint its physical location and avoid potential consumer confusion with other identical or similar names. After careful consideration, the petitioner modified the name of the viticultural area petition to “Happy Canyon of Santa Barbara.” The petitioner believes that the proposed Happy Canyon of Santa Barbara viticultural area name will identify the area as a unique grape-growing region for both consumers and industry members.

According to the USGS Lake Cachuma, Santa Ynez, and Figueroa Mountain maps that the petitioner provided, Happy Canyon is a region that descends in elevation northeast-to-southwest, north and west of Lake Cachuma in Santa Barbara County. Happy Canyon Road, a light-duty road, meanders through the proposed viticultural area.

A road map of Santa Barbara County shows that the Happy Canyon area and Happy Canyon Road are to the east of the town of Santa Ynez (Automobile Club of Southern California, California State Automobile Association, January 2003 edition). The map also shows that the Happy Canyon area is within Santa Barbara County.

The petitioner documents that the proposed Happy Canyon of Santa Barbara viticultural area lies in the eastern part of the 40-mile-wide Santa Ynez Valley and the northern part of Santa Barbara County, California. As shown on USGS maps, Happy Canyon comprises canyon terrain, hills, and river and creek basins to the east and south of the San Rafael Mountains, west of Lake Cachuma, and north of the Santa Ynez River.

The petitioner explains that the proposed boundary line of the Happy Canyon of Santa Barbara viticultural area was drawn by a local committee of viticulturists, consultants, and vintners, all of whom had formal training in geology, geography, and agriculture. The proposed boundary line encompasses a unique geological and climatic grape-growing region on the east side of the Santa Ynez Valley viticultural area. The proposed boundary line skirts the San Rafael Mountains to the north, the Los Padres National Forest to the east, and the Lake Cachuma Recreation Area on portions of the south side, according to the written boundary description. The proposed boundary line, continuing in a clockwise direction, incorporates a portion of the Santa Ynez River as the south boundary line, and uses a series of straight lines between elevation points to skirt the steep foothills west of the Santa Agueda and Figueroa Creeks.

According to the petitioner, the northern and northeastern portions of the boundary line of the proposed Happy Canyon of Santa Barbara viticultural area are based on the location of the best grape-growing areas, viable agricultural soils, sparse and rocky pine forests, and high elevations. Photographs and descriptions of the landscape in the proposed viticultural area tell of the change from green pastures to stony, infertile soils at the Los Padres National Forest to the northeast. The U.S. Department of Agriculture, Soil Conservation Service, did not map the soils in the national forest. However, as shown on the USGS maps submitted with the petition, elevations north of Happy Canyon rise from 1,200 to 3,200 feet, far exceeding the average 1,200-foot elevation within the proposed viticultural area.

The USGS maps show that the eastern boundary line of the proposed Happy Canyon of Santa Barbara viticultural area runs, north to south, along the border of the Los Padres National Forest, and continues south along the dividing line of several land grants. The proposed boundary line cuts through steep, mountainous terrain where elevations are between approximately 800 and 3,400 feet. The petitioner explains that the proposed eastern boundary line uses the same line established in 1983 for the eastern border of the Santa Ynez Valley viticultural area. Local winegrowers in Happy Canyon assert that the eastern boundary line applies equally well to the Santa Ynez Valley and the proposed Happy Canyon of Santa Barbara viticultural areas.

According to the written boundary description in the petition and the USGS maps, the southern boundary line of the proposed Happy Canyon of Santa Barbara viticultural area coincides with the southern boundary line of the Santa Ynez Valley viticultural area along the boundary line of the Lake Cachuma Recreation Area to its intersection with the Santa Ynez River. The proposed boundary line then follows the Santa Ynez River west to its intersection with a road, where the boundary line turns north.

The petitioner explains that the committee, in determining the southwestern portion of the boundary of the proposed viticultural area, considered only areas that were traditionally known as Happy Canyon and that had similar potential for viticulture.

The petitioner explains that the central and northerly portions of the western boundary line of the proposed Happy Canyon of Santa Barbara viticultural area define the boundaries of grazed, rolling hills and deep canyons with ridge lines 1,200 to 1,800 feet in elevation. According to the written boundary description and USGS maps, the rolling foothills of the Santa Agueda Creek Valley, where cattle graze both sides of the creek, lie immediately inside the proposed western boundary line. As the Santa Agueda Creek Valley rises to the west, rolling foothills meet steep canyons at the western boundary line of the proposed Happy Canyon of Santa Barbara viticultural area. The petitioner notes that the steepness of the terrain to the west and outside of the proposed boundary line contrasts with the topography and geology of the preserved oak scrubland, open rolling grazeland, and vineyards to the east, inside the proposed boundary line.

The petitioner states that the distinguishing features of the proposed Happy Canyon of Santa Barbara viticultural area are climate, topography, drainage, and soils and geology. Happy Canyon, in the eastern portion of the Santa Ynez Valley, and the western portion of the Santa Ynez Valley have overt differences in climate, geological parent material, and soil drainage patterns.

According to the petitioner, of all the grape-growing areas in the Santa Ynez Valley, Happy Canyon is the furthest inland and has the warmest climate. It is located in the easternmost part of the Santa Ynez Valley, and the daytime highs and nighttime lows in that part of the county vary more in a 24-hour period than those in other parts of the valley. At about 12 miles west of the proposed viticultural area, the inland mountain ranges change direction from west-east to north-south. The north-south mountain ridge blocks the Pacific coastal breezes, preventing them from cooling the canyon. As a result, the ridge traps in heat in Happy Canyon during the warmer growing months.

The petition for the Happy Canyon of Santa Barbara viticultural area includes climatic data for the period 2004-6 provided by Kerry Martin of Coastal Vineyard Care Associates. Some of the data for the Happy Canyon area and the areas to the west and north of Happy Canyon were obtained from data stations located in vineyards and maintained by Coastal Vineyard Care Associates. The data for the areas to the east and south of Happy Canyon were retrieved from the Western Regional Climate Center (at http://www.wrcc.dri.edu/ ) and the California Irrigation Management Information System (at http://www.cimis.water.ca.gov/cimis/welcome.jsp ), respectively. The petitioner used those data in creating the table below, which compares growing degree days, based on the Winkler climate classification system, for Happy Canyon and the surrounding areas; see “General Viticulture,” by Albert J. Winkler, University of California Press, 1974. In the Winkler system, as a measurement of heat accumulation during the growing season, 1 degree day accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, which is the minimum temperature required for grapevine growth. The data, in degree days, show that, compared to the Happy Canyon area, areas to the north, south, and west of Happy Canyon average between 5 and 20 percent cooler and the area to the east averages 15 percent warmer.

The petitioner explains that the topography of the proposed Happy Canyon of Santa Barbara viticultural area includes varying elevations, rolling foothills, and a distinctive southwest drainage. According to the USGS maps, the proposed viticultural area lies on the east side and in the higher elevations of the Santa Ynez Valley region. Elevations within the proposed boundary line range from 500 feet in the southwest corner to 3,430 feet in the northeast corner, in the foothills of the San Rafael Range.

The petitioner explains that between the Pacific Ocean and the Santa Ynez Valley, hills and mountains trend west-to-east. As the elevation of the Santa Ynez Valley rises from west to east, the hills and mountains turn from a west-east direction to a generally north-south direction. The proposed viticultural area, located inland, lies along mountains and hills with a north-south orientation.

According to the petitioner, the southwest drainage pattern of the proposed viticultural area is comparatively unique. To the west of the proposed boundary line, between Santa Agueda Creek and Figueroa Mountain Road, the drainage pattern trends south-southeast.

According to the current soil survey, the two major soil types in the proposed Happy Canyon of Santa Barbara viticultural area are related to topography (“Soil Survey of Northern Santa Barbara Area, California,” issued by the United States Department of Agriculture, Soil Conservation Service, 1972).

Alluvial soils are at lower elevations and on bottoms of canyons; upland soils are at higher elevations of canyons and on surrounding peaks and hilltops.

The petitioner explains that based on the current soil survey, the soil characteristics of the proposed Happy Canyon of Santa Barbara viticultural area include green serpentine (magnesium silicate hydroxide) parent material, elevated levels of exchangeable magnesium, lower levels of exchangeable sodium, and a high cation exchange capacity (CEC). High CEC levels, based on the amount of positively charged ions in the soils, increase the uptake of nutrients by plant roots.

The proposed viticultural area comprises the Shedd-Santa Lucia-Diablo and Toomes-Climara associations on uplands. The Shedd-Santa Lucia-Diablo association consists of strongly sloping to very steep, well drained shaly clay loams and silty clays. The Toomes-Climara association consists of moderately steep to very steep, somewhat excessively drained and well drained clay loams and clays.

The Chamise-Arnold-Crow Hills association is of greater extent in the western portion of the Santa Ynez Valley viticultural area, west of the proposed Happy Canyon of Santa Barbara viticultural area. This association consists of gently sloping to very steep, well drained and somewhat excessively drained sands to clay loams on high terraces and uplands.

The petitioner explains that the soils in the western portion of the Santa Ynez Valley viticultural area, compared to the soils in the proposed Happy Canyon of Santa Barbara viticultural area, have less magnesium, a significantly lower CEC level, and higher amounts of exchangeable sodium. Although drainage patterns change along the proposed western boundary line, the soils on both sides of the boundary line are similar.

The Positas-Ballard-Santa Ynez soil association is scattered throughout much of the southern part of the proposed Happy Canyon of Santa Barbara viticultural area. Sedimentary rock, unfavorable for viticulture, is predominant along the south side of the Santa Ynez River, outside the proposed boundary line.

The petitioner provides the results of two soil studies conducted in connection with the proposed Happy Canyon of Santa Barbara viticultural area. The first study details the differences in CEC among soils tested at sites in the proposed viticultural area and in areas immediately southwest and further west of the proposed boundary line, in the western end of the Santa Ynez Valley. The study shows that the soils in the proposed viticultural area have significantly more magnesium and an elevated CEC level as compared to the soils in areas beyond the proposed boundary line to the southwest and west (see table below). The petitioner also notes that the levels of calcium and sodium in the soils in the Happy Canyon are less than half those in the soils to the southwest and west.

The second study that the petitioner provided examines the differences in soils in the proposed Happy Canyon of Santa Barbara viticultural area and in canyons outside the boundary line, as far west as Figueroa Mountain Road, which is located approximately 4 miles away. The study is based on an acreage table of the soils on approximately 35,000 acres within the proposed viticultural area and on an equal number of acres to the west (see “Soil Survey of Northern Santa Barbara Area, California”). The results of that study confirm the differences in total acreage and slope of soils in areas on either side of the proposed western boundary line of the Happy Canyon of Santa Barbara viticultural area (see table below).

Background on Viticultural Areas TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographic features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographic features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

Alan J. Busacca, PhD, a geologist licensed in Washington State and a nationally certified professional soil scientist with Vinitas Vineyard Consultants, submitted a petition on behalf of the Lake Chelan Wine Growers Association to establish the 24,040-acre Lake Chelan American viticultural area in north-central Washington. Some of the petition evidence and documentation provided relies on the previous research and writings of Dr. Busacca. Additional petition resources include Government-published climatic, topographic, and soils data, as well as maps, municipal resources, commercial publications, personal correspondence, and anecdotal information.

The Lake Chelan Valley lies about 112 miles east-northeast of Seattle, according to USGS and commercial maps. The petitioner explains that the proposed Lake Chelan viticultural area lies entirely within the large, established Columbia Valley viticultural area (27 CFR 9.74). TTB notes that the Lake Chelan region lies to the east of the Puget Sound viticultural area (27 CFR 9.151) and to the north of other Washington State viticultural areas. The proposed Lake Chelan viticultural area also is not adjacent to nor does it include any portion of any other Washington State viticultural area except the Columbia Valley viticultural area.

The petitioner explains that the proposed Lake Chelan viticultural area includes the southern and eastern portions of the large body of water known as Lake Chelan and its surrounding lands suitable for viticulture. According to the petitioner, at the time of the 2006 petition filing with TTB, the proposed viticultural area included 13 bonded wineries, 140 acres of vineyards, and another 50 acres to be planted to grape vines.

According to the petitioner, distinguishing features of the proposed Lake Chelan viticultural area include its geology, geography, soils, and climate as directly influenced by past alpine glacial activity of the Cascade region. Lake Chelan Valley is the only valley in the Cascade Range in Oregon or Washington that holds a natural lake of its size. The climate of the agricultural and viticultural lands surrounding the lower (eastern) end of the lake is strongly moderated by the thermal effect of the lake on the air temperatures. The glacier that formed during the last ice age and traveled from the Cascade crest to the eastern end of the modern lake left a defining imprint on the landforms of the Lake Chelan Valley. In addition, the petitioner claims that pumice and ash from eruptions of volcanoes in the Cascade Range, principally Glacier Peak to the west of the proposed viticultural area, formed soils that are ashier and more pumiceous than those in any other established viticultural area in Washington State.

We summarize below the supporting evidence submitted with the petition.

The “Chelan” geographic name derives from the name that Alexander Ross, an American fur trader, in about 1824 used to describe the “Tsill-anes,” a native people living along the south shore of Lake Chelan, according to “Chelan County—Thumbnail History,” an article from the Washington State Department of Archaeology and Historic Preservation, The Online Encyclopedia of Washington State History at www.historylink.org .

The “Lake Chelan” name appears on the USGS Chelan, Manson, and Winesap quadrangle maps. The USGS Chelan map, sections 11 and 12, T27N and R23N, identifies an area to the north-northwest of the small town of Chelan as the “Lake Chelan Golf and Country Club.” The DeLorme Washington Atlas and Gazetteer identifies “Lake Chelan” on page 83, sections A7, B7, and B8. The American Automobile Association map, Oregon Washington State Series, identifies “Lake Chelan” as a long slender lake extending northwest from the North Cascades National Park southeast to the Chelan Dam, approximately 2 miles northwest of the Columbia River.

An article entitled “Chelan and Stehekin, WA,” dated August 12, 2006, on http://www.nwsource.com , a northwest travel and outdoors Web site, states that Lake Chelan is one of Washington's favorite summer recreation areas.

According to the petitioner and the written boundary description, the proposed Lake Chelan viticultural area encompasses the southernmost and easternmost 12 miles of the 55-mile-long lake and surrounding lands. A bedrock ridge, with a pinnacle at a 1,526-foot elevation, divides the approximately 1,200-foot elevation of the south Lake Chelan region from the 707-foot elevation of the Columbia River, according to USGS maps of the area and the petitioner. Lands to the east and southeast of the proposed viticultural area are within the Columbia River airshed and watershed, and have different climates, geology, and soils.

The upper 43 miles of Lake Chelan and its shoreline lie outside of the proposed viticultural area, according to the written boundary description provided in the petition. According to the petitioner, in the northern lake region the surrounding Cascade Range provides significant downward cold air drainage from peaks to valley floor and blocks the sun from the adjacent valley lands. The cold air and shade combine with a steep shoreline terrain to create a region unsuitable for grape growing. Additionally, the North Cascades National Park surrounds the north end of Lake Chelan, and commercial agricultural development is prohibited within its borders.

Lands with viticultural potential in the Lake Chelan Valley area, the petitioner states, are generally at or below 2,000 feet in elevation. High mountains ridges, beyond the boundary of the proposed Lake Chelan viticultural area, rise over 5,000 feet in elevation to the north and west and to 3,800 feet to the south, cradling the Lake Chelan Valley region on three sides, according to the petitioner and USGS maps. The petition explains that these high mountains, which have cold climates and forested terrain, are unsuited to viticulture.

According to the Chelan Valley Mirror dated May 1, 1947, Urban DeGrassi, a Jesuit priest, spent several years in the Lake Chelan region teaching agriculture. Based on Father DeGrassi's teachings, in 1881, John and Peter Wapato, Native Americans of Chelan Valley, started planting fruit eventually including grapes and cherries.

According to an article in the August 6, 1891, edition of the Chelan Falls Leader, Louis Conti, an Italian immigrant, owned a 60-acre vineyard in the Lake Chelan area. The article stated that a colony of Italian immigrants, living on the sunnier south side of the lake, planted grape vines on their claimed lands.

Two 1905 photographs from the Chelan County Historical Society show grapes growing in the Lake Chelan area. A photo of grapes on the vine is labeled “Black Hamburg Grapes—Lake Chelan.” The petitioner explains that the common name for those grapes is Black Muscat. The other photo, which shows a little boy sitting on the ground beside grapes hanging heavily from a vine, is labeled “Lake Chelan Grapes.”

The Faletto family continued growing grapes into the early 1900s, according to an e-mail dated November 22, 2005, from family member Rich Faletto. Mr. Faletto stated of his grandfather, “Old John was the vintner and winery operator in the valley, producing great wine from [grapevines] brought to the area by a group of Italians.”

The Chelan and Manson areas, within the proposed viticultural area, comprised 154 acres of producing vineyards, according to a November 17, 1949, newspaper article written by Harry R. McMullen. According to the article, that year grape growers received 2 cents a pound, or $40 a ton, from the Welch Company.

The petitioner states that in 1998, Steve Kludt and Bob Christopher replanted apple orchards to grapes within the proposed Lake Chelan viticultural area. Also, in 2000 the Kludt family opened the first bonded winery in the area and in 2001 started selling wine. Vineyard production in the Lake Chelan region increased from over 90 acres in 2004 to 140 acres by 2006. According to the petitioner, 13 bonded wineries operated in the Lake Chelan area as of the 2006 petition submission date.

The petitioner explains that the proposed boundary line uses a 2,000-foot elevation line and USGS map section lines in conjunction with roads, mountain peaks, and other map markings in providing a clear, simple perimeter. The proposed Lake Chelan viticultural area boundary line includes lands adjacent to the southernmost 12 miles of the lake, according to the petition.

In determining the proposed boundary line, the petitioner includes in the proposed viticultural area only the valley areas with a significant “lake effect” climate. The lake affects surrounding lands, the petitioner explains, by favorably moderating the climate, increasing the length of the growing season, and reducing the frequency of damaging or killing vine freezes. The petitioner states that the proposed boundary line excludes from the proposed viticultural area the surrounding mountainous areas and the northern 43 miles of the lake and adjacent lands, all unsuitable for viticulture.

TTB notes that the northeast portion of boundary of the proposed Lake Chelan viticultural area coincides with 17 miles of the 2,000-foot boundary line of the Columbia Valley viticultural area. In the original petition, the proposed northeast boundary line incorporated a series of map section lines and 90-degree turns. After discussions with TTB, the petitioner modified the northeast portion of the boundary line to coincide with the boundary line of the Columbia Valley viticultural area.

The petitioner provides an aerial photo of agriculture within and immediately outside of the proposed Lake Chelan viticultural area. The planted orchards and vineyards are clustered on the low, flat elevations adjoining the northern and southern shorelines of the lake. The petitioner explains that viticulture fails to thrive outside the proposed boundary line because of high elevations, steep terrain, cold temperatures, and the absence of a moderating lake effect climate.

Other boundary line considerations include properties of the soil, the influences of the watershed and airshed, the elevations of the surrounding mountains, and the steepness of the terrain.

The proposed Lake Chelan viticultural area, a part of the Cascade Range geographic province, the petitioner explains, includes distinctive geology, geography, soils, and climate that contrast to those of the surrounding areas. The geology, the petitioner notes, includes the advance of Cascade alpine glaciers that occurred 14,000 to 18,000 years ago.

The Cascade Mountain Range runs north-south through Washington and Oregon and divides western and eastern Washington, the petitioner explains. The range creates, to the east, a rain shadow that limits precipitation in the Lake Chelan Valley and on the Columbia Plateau in eastern Washington. The range protects areas to its east from Arctic and Pacific winter storms and further moderates climate.

Lake Chelan Valley is the only valley that the Cascade glacier created in Washington and Oregon and that holds a large natural lake of Lake Chelan's size. The lake is the third deepest lake in the U.S., the petitioner emphasizes. The soils in the valley formed in glacial sediments layered below the more recent windblown deposition of volcanic pumice and ash. Also, the large glacial lake acts as a heat reservoir to produce a unique climate of consistently moderated temperatures.

Most Washington vineyards, the petitioner states, lie on the Columbia Plateau geographic province, the features of which contrast significantly in several important ways from the Lake Chelan Valley in the Cascade Range geographic province. The distinguishing features of the Columbia Plateau include the bedrock of Tertiary-age basaltic lavas, sediments derived from cataclysmic outburst floods of Lake Missoula, and bench-and-riser landforms that the recurrent Missoula Floods created through erosion of the lavas. The topography varies from near moonscapes to megasized gravel bars and slackwater terraces.

The petitioner states that another distinguishing feature of the Columbia Plateau is the predominant east-west trending valley-and-ridge system that affects the elevation, slope, aspect, heat accumulation, winds, and air drainage of the plateau. Also, plateau elevations vary from 460 feet at the Wahluke Slope viticultural area (27 CFR 9.192) to 970 feet at the Walla Walla Valley viticultural area (27 CFR 9.91), a topography with a significantly lower elevation than that of the Lake Chelan area of the Cascade Range.

The separate climates of the Columbia Plateau viticultural areas share low winter temperatures with complete vine dormancy and significant fall daytime and nighttime temperature variations. The viticultural areas of the Columbia Plateau lie within the rain shadow of the Cascade Range, and have a drier climate as compared to western Washington. The combination of distinguishing features in the viticultural areas on the Columbia Plateau, the petitioner concludes, creates a unique annual growing season that contrasts with the Lake Chelan Valley region in the Cascade Range geographic province.

The petitioner explains that the most recent ice-age events of the Earth, 14,000 to 18,000 years ago, played significant roles in creating the differing geological records within the Cascade Range and the Columbia Plateau.

The region encompassing the proposed Lake Chelan viticultural area, according to the petitioner, includes camel-backed bedrock landforms that the Cascade Range alpine glaciers eroded into the dominantly granitic bedrock of the Lake Chelan area, lake sediments that the alpine glaciers deposited, and bedrock that consists of Cretaceous-age igneous and older metamorphic rocks. The glaciers crushed bedrock in the Lake Chelan region, creating glacial till and outwash sediments that have coarse sandy textures and that are rich in biotite mica. The glacial lake sediments, silty to clayey in texture, include substantive amounts of quartz and mica. As a result, the soil's deep rooting zone for grape vines has distinguishable textures, mineralogy, and nutrients.

The petitioner provides a geologic map of the proposed Lake Chelan viticultural area from the USGS Miscellaneous Investigations Series Map I-1661, Geologic Map of the Chelan, 30-Minute by 60-Minute Quadrangle, Washington, accessed online on June 26, 2006. The map identifies the Cretaceous-age bedrock and the Quaternary age surface sediments in the Lake Chelan Valley area. The Cretaceous-age units consist of dark, intrusive igneous tonalites, the petitioner explains. TTB notes that tonalite is an igneous plutonic (intrusive) rock having greater than 20 percent quartz and quartz diorite with 5 to 20 percent quartz. Also, the Quaternary-age units consist of glacial moraines, terraces, lake deposits, and postglacial landslides and alluvial sediments.

According to the petitioner, the Columbia Plateau geologic history, in contrast, stems from the force of a lobe of the western Canadian ice sheet that blocked the Clark Fork River in Idaho and created the huge glacial Lake Missoula in Montana. When the glacial ice dams repeatedly failed, the largest floods of water ever documented on Earth occurred. The floods overwhelmed the Columbia River and flowed across eastern Washington, eroding channels in the basalt bedrock and depositing gravel bars in the main basins and fine sandy and silty sediments in the river valleys.

Elevations vary from approximately 1,100 feet at lake level to 3,276 feet at an unnamed peak in the northwest portion of the proposed Lake Chelan viticultural area, 1.8 miles northwest of Lake Chelan State Park on the USGS Manson quadrangle map. The lower elevations, which have gently rising slopes, are along the southern and eastern shoreline of Lake Chelan, as shown on the USGS maps of the region. The petitioner explains that the lower lakeside elevations are known for successful fruit growing. The higher elevations enveloping the Lake Chelan Valley region generally correlate with steep terrain, as shown on the USGS maps of the proposed viticultural area.

According to the petitioner, when the Cascade alpine glaciers descended from the mountain crests to lower elevations, they created the distinctive U-shaped Lake Chelan Valley topography, including the lake depression. The term “camel-backed” describes the landforms of the Lake Chelan Valley at low elevations and adjacent surrounding mountains. The Cascade alpine glaciers created other valleys in the region with similar landscapes, including camel-backed topography, and layers of glacial sediment, but not lake basins. Thus, only Lake Chelan Valley, in contrast to the other regional glacial valleys, has a climate-moderating lake effect.

According to local growers and temperature statistics, a lake effect moderates air temperature extremes in both summer and winter in the proposed Lake Chelan viticultural area. The combination of moderating summer high and winter low temperatures creates a suitable environment for both viticulture and tree fruit agriculture. According to the petitioner, the strong lake effect moderates the air temperatures of planted areas adjacent north and south of the eastern part of the lake. In those areas, the waters of Lake Chelan create a heat reservoir that absorbs warming solar energy in summer and then reradiates heat energy into cold air in winter. The table below compares the climate in the areas along Lake Chelan to that in similar areas nearby but without lakes.

The petitioner uses a cool-climate viticultural suitability index (CCVSI) formulated at Cornell University as an analytical tool for the Lake Chelan Valley climate. The CCVSI emphasizes the impact of temperature moderation on viticulture. The petitioner explains that the CCVSI compiles the sum of the days from the last occurrence of 29 degrees Fahrenheit or lower in spring until the first occurrence of 29 degrees Fahrenheit or lower in fall. The larger total numbers, in days, generally correlate to the better viticultural regions.

For the Lake Chelan Valley region, the CCVSI 10-year average of 244 days is significantly higher than the glacially formed Methow Valley in the Cascade Range to the north and higher than the Wanatchee Valley to the south.

In another measure of the lake effect on the proposed Lake Chelan viticultural area, the petitioner uses the annual average number of days with temperatures of 32 degrees Fahrenheit or lower in winter and 95 degrees Fahrenheit or higher in summer. The petitioner compares the climates in Lake Chelan Valley, Methow Valley, and Wenatchee Valley using this method. All three valleys are located within 60 miles of each other, were created partially or totally by Cascade alpine glaciers, and have other similar geographic features. Lake Chelan Valley averages 7 days a year above 95 degrees Fahrenheit, and Methow Valley and Wenatchee Valley average 14 days a year, according to data from the National Climate Data Center included with the petition. Fewer hot days in the Lake Chelan Valley correlate with better fruit quality, since temperatures above 95 degrees shut down most photosynthesis in grapes, according to the petitioner. The Lake Chelan Valley averages only 90 days a year colder than 32 degrees Fahrenheit in winter, while the Methow Valley averages 148 days and the Wenatchee Valley averages 102 days.

Northwest of the proposed viticultural area, temperatures are too low for viticulture because of cold air drainage from the high Cascades and severe shading from steep mountainsides close to the lake. To the east and northeast of the proposed viticultural area, a ridge holds the lake-affected air masses in the lake basin. That ridge is used as the proposed eastern boundary.

To further demonstrate the moderating lake effect, the petitioner provides evidence concerning vine-killing freezes which, according to the petitioner, occur less frequently in the proposed Lake Chelan viticultural area than in other viticultural areas in eastern Washington State. Winemaker Charles Ray Sandidge III, in an October 2, 2006, e-mail to the petitioner, states that he conducted a study of weather data in the period 1934-84 in the regions of Wahluke Slope, Walla Walla, Chelan, East Wenatchee, and Roosevelt. Results, based on cold temperature readings, indicated that the Lake Chelan area averaged a killing freeze once in 17 years, while the other Washington viticultural areas studied averaged 6 to 8 years between vine-killing freezes.

Mr. Sandidge states that Lake Chelan averages a heavy crop loss and a light vine loss every 17 years. Also, fall temperatures cool more rapidly and rains arrive about a week earlier than in areas to the south. Mr. Sandidge theorizes that while the Lake Chelan area experiences milder winter temperatures, the later spring bud break relates to the close proximity of the proposed viticultural area to the surrounding mountains.

According to the petitioner, the soils of the Lake Chelan Valley include layers of glacial debris, sediment from normal stream erosion and deposition after the glacial age, and airborne volcanic and nonvolcanic sediments. The lower parts of the deeper soils, 20 to 60 inches below the surface, predominantly formed in glacial sediments. The upper part of the soils formed in a mixture of large amounts of airborne volcanic pumice and ash from Glacier Peak and very small amounts of loess (wind-transported material) overlying the glacial sediments. Thus, the soils downwind from Glacier Peak and the north Cascades, including the soils in the proposed Lake Chelan viticultural area, are rich, about 3 to 40 percent by volume, in volcanic pumice and ash from a massive eruption of the Glacier Peak volcano about 12,000 years ago.

The petitioner explains that bedrock in the proposed Lake Chelan viticultural area consists of Cretaceous-age granitic rocks and older metamorphic rocks, including amphibolite, schist, and biotite gneiss. Glaciers shattered and crushed the Cascade crystalline bedrock, creating glacial till and glacial outwash sediments that include biotite mica-rich cobbly, bouldery, gravelly, and coarse sandy materials.

The soils in Lake Chelan Valley that are close to the surface, according to the petitioner, include sand- and fine gravel-sized pumice from the volcanic eruption of Glacier Peak to the northwest. Soils that have significant amounts of volcanic ash and pumice or clays weathered from glass have an unusually high available water capacity. The petitioner believes that the high content of volcanic material in the soils is a significant contributory factor to the successful regional viticulture and pomology over the past 100 years.

The United States Department of Agriculture, National Cooperative Soil Survey, has identified 11 soil series within the proposed Lake Chelan viticultural area. Eight of these series consist of soils derived from volcanic glass, including ashy, cindery, pumiceous, glassy, vitrandic, medial, and amorphic soils, the petitioner explains. Only the Margerum and Dragoon series are silt loam, which is common on the Columbia Plateau. The information in the soil table below is from the Official Soil Series Descriptions accessed on October 18, 2006, at the U.S. Department of Agriculture Web site, at: http://soils.usda.gov/technical/classification/osd/index.html .

The petitioner explains that many agricultural soils on the Columbia Plateau are silt loam throughout the soil profile, and are unlike those with a high content of volcanic pumice and ash in the Lake Chelan area and Cascade Range. Also, the mineralogy of the Columbia Plateau basalt sediments, deposited as alluvium derived from basaltic lavas, includes neither quartz nor mica, which are commonly found in the sediments in the Lake Chelan Valley area.

A sampling of soils taken by the petitioner across the Columbia Plateau shows that the dominant parent materials are loess and dunes and have an average content of only 12 percent volcanic glass. This is substantially different from the high glass content of soils in the proposed viticultural area. The Pasco and Umatilla Basins, to the south of the proposed viticultural area, were the origins of most of the loess throughout the Columbia Plateau. Over the millennia the Lake Chelan Valley, outside the path of most of the wind transporting the loess, has received only minor deposits of loess. The petitioner asserts that the differences in soil between the Lake Chelan Valley and the Columbia Plateau impact infiltration and runoff of water, aeration of the soils, root penetration, and available water capacity.

TTB concludes that this petition to establish the 24,040-acre Lake Chelan American viticultural area merits consideration and public comment, as invited in this notice.

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and we list them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Lake Chelan,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). The text of the proposed regulation clarifies this point.

In addition, based on the evidence submitted, we believe that “Chelan” standing alone is locally and/or nationally known as referring to the region in Washington State encompassed by the proposed “Lake Chelan” viticultural area, and we therefore believe that consumers and vintners could reasonably attribute the quality, reputation, or other characteristic of wine made from grapes grown in the proposed “Lake Chelan” viticultural area to the name “Chelan” itself. Therefore, the proposed part 9 regulatory text set forth in this document specifies both “Lake Chelan” and “Chelan” as terms of viticultural significance for purposes of part 4 of the TTB regulations. Also see 27 CFR 4.39(i)(3), which provides that a name has viticultural significance when so determined by a TTB officer.

Consequently, if this proposed text is adopted as a final rule, wine bottlers using “Lake Chelan” or “Chelan” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's full name as an appellation of origin.

For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term specified as having viticultural significance in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name or other term of viticultural significance appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a previously approved label uses the name “Lake Chelan” or “Chelan” for a wine that does not meet the 85 percent standard, the previously approved label will be subject to revocation, upon the effective date of the approval of the Lake Chelan viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are interested in receiving comments on the sufficiency and accuracy of the name, climatic, boundary, and other required information submitted in support of the petition. In addition, we are interested in receiving comments on the proposal to identify “Lake Chelan” and “Chelan” as terms of viticultural significance. Please provide any available specific information in support of your comments. We are also particularly interested in any comments on whether the evidence regarding name and distinguishing geographical features is sufficient to warrant the establishment of this new viticultural area within the existing Columbia Valley viticultural area.

Because of the potential impact of the establishment of the proposed Lake Chelan viticultural area on wine labels that include the words “Lake Chelan” or the word “Chelan” as discussed above under Impact on Current Wine Labels, we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are also interested in receiving suggestions for ways to avoid conflicts, for example by adopting a modified or different name for the viticultural area.

You may submit comments on this notice by using one of the following two methods:

• Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this notice within Docket No. TTB-2008-0006 on “Regulations.gov,” the Federal e-rulemaking portal, at http://www.regulations.gov . A direct link to that docket is available under Notice No. 87 on the TTB Web site at http://www.ttb.gov/wine/wine_rulemaking.shtml . Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

• U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 87 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

We will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments we receive about this proposal within Docket No. TTB-2008-0006 on the Federal e-rulemaking portal, Regulations.gov, at http://www.regulations.gov . A direct link to that docket is available on the TTB Web site at http://www.ttb.gov/wine/wine_rulemaking.shtml under Notice No. 87. You may also reach the relevant docket through the Regulations.gov search page at http://www.regulations.gov . For instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting.

You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact our information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials.

We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

N.A. Sutton of the Regulations and Rulings Division drafted this notice.

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographical origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

The Upper Mississippi River Valley AVA Committee submitted a petition to TTB proposing the establishment of the 29,914-square mile “Upper Mississippi River Valley” American viticultural area in portions of southeast Minnesota, southwest Wisconsin, northwest Illinois, and northeast Iowa. A map submitted with the petition indicates that the vineyards within the proposed viticultural area are geographically disbursed throughout the area. The established 28,000-acre (43.75-square mile) Lake Wisconsin viticultural area (27 CFR 9.146) located in Columbia and Dane Counties, Wisconsin, lies entirely within the eastern portion of the proposed viticultural area.

As indicated on the USGS maps included with the petition, the Mississippi River runs north-to-south in the approximate middle of the proposed viticultural area. St. Paul, Minnesota, is the northernmost point of the proposed viticultural area and its southernmost point is north of Moline, Illinois. According to the petitioner, the Wisconsin ice age and the effects of glaciation on the region provide a basis for most of the distinguishing features of the proposed viticultural area.

We summarize below the supporting evidence submitted with the petition.

According to the petitioner, the Upper Mississippi River Wildlife and Fish Refuge Act of 1924 provides a historical perspective in support of the “Upper Mississippi River Valley” name and its boundaries. The Act established what later would be known as the Upper Mississippi River National Wildlife and Fish Refuge, an area that Congress created to reflect the unique habitat of the Paleozoic Plateau (see “Regional Land Management” below). The petition documentation includes references citing the Upper Mississippi River Valley name relevant to the Upper Mississippi River National Wildlife and Fish Refuge. The petitioner documents the use of the Upper Mississippi River Valley name in Federal and public Web sources.

A page on the USGS Web site, “Status and Trends of the Nation's Biological Resources, Part 2, Regional Trends of Biological Resources,” ( http://biology.usgs.gov/s+t/SNT/index.htm ) includes a section on the Mississippi River. The “Geography, Geological History, and Human Development” subsection explains the glacial history of the Upper Mississippi River. The Wisconsin Glacier retreating into Canada and melting is described as follows: “The Upper Mississippi River valley then began filling with glacial outwash, mainly sand and gravel, a process that is still under way * * *. The Upper Mississippi River valley widens considerably where it joins the Minnesota River, 13 kilometers downstream from St. Anthony Falls * * *.” The petitioner explains that at St. Anthony Falls the Mississippi River headwaters join the northern boundary of the Upper Mississippi River Valley.

Regarding the history of the valley, a page on the National Park Service Web site ( http://www.nps.gov/efmo/parks/hist.htm ) states that “The Upper Mississippi River valley was not only the home of prehistoric Indians for thousands of years, but also has been the scene for over 300 years of recorded human history as well. Early explorers found the area along the big river occupied by groups of Native Americans.”

The May 6, 1997, NOVA broadcast entitled “Flood!” described the 1993 flooding of the Upper Mississippi River Valley. It included an interview with Lynn House of Quincy, Illinois. She and her husband own 1,400 acres along the Mississippi River. Mrs. House said that during the flooding of 1993 her husband exclaimed, “Levees are going to break like guitar strings, up and down the Upper Mississippi River Valley!”

“Twelve Millennia: Archaeology of the Upper Mississippi River Valley,” by James Theler and Robert Boszhardt (2003, Iowa State University Press), provides an overview of the 12,000-year-old human past of the Driftless Area of the Upper Mississippi River Valley, according to a description of the book on www.amazon.com . The Driftless Area extends from Rock Island Rapids, in the Moline-Rock Island, Illinois, area, north to St. Anthony Falls in the Minneapolis-St. Paul, Minnesota, area. (It comprises areas that were excluded from glacial transport of sediments and other materials.) The petitioner notes that the Driftless Area roughly corresponds to the boundary of the proposed Upper Mississippi River Valley viticultural area.

The “Upper Mississippi River Valley: A Personal Web Site and Guide,” at http://soli.inav.net/~atkinson/k/UpperMissRiver.htm , has scenic photographs and information on local tourism, parks and natural areas, cities and towns, books, and shopping in the Upper Mississippi River Valley.

The proposed Upper Mississippi River Valley viticultural area covers 29,914 square miles, averaging 120 miles east to west and 225 miles north to south, according to the USGS maps provided with the petition. The headwaters of the Mississippi River start at Lake Itasca in northwest Minnesota and continue to St. Anthony Falls in Minneapolis-St. Paul, Minnesota, the petitioner explains.

According to the USGS maps included with the petition, the proposed northern boundary of the Upper Mississippi River Valley viticultural area coincides with the landmark St. Anthony Falls. The proposed southern portion of the boundary extends west from north of Moline, Illinois, at Lock and Dam 14 on the Mississippi River, to Tiffin, Iowa. The USGS maps show that the proposed easternmost point of the proposed boundary is in Janesville, Wisconsin, and the westernmost point is along Minnesota State Highway 56 in Coates, Minnesota, south of St. Paul.

To define the proposed boundary of the Upper Mississippi River Valley viticultural area, the petitioner provided a written boundary description and USGS State maps for Minnesota, Wisconsin, Illinois, and Iowa. The petitioner also provided Anamosa and Marshalltown, Iowa, regional maps, which show highways in more detail.

The table below lists the counties in four states that are either totally or partially within the boundary of the proposed Upper Mississippi River Valley viticultural area.

The petitioner explains that European explorers Jacques Marquette and Louis Joliet first entered the Upper Mississippi River Valley on June 17, 1673. The Louisiana Purchase and the resolution of the Black Hawk War in 1832 served to open the area to settlers from the eastern states.

According to the petitioner, native grape varieties in the Upper Mississippi River Valley thrived in the late 19th and early 20th centuries. In 1919, Iowa produced the sixth largest grape crop in the United States. However, prohibition, severe freezes, droughts, and wind drift from some crop sprays caused native viticulture to dwindle throughout much of the 20th century within the proposed viticultural area. The disease- and cold-resistant French-American grape hybrids and crop spray improvements developed during the 20th century resulted in renewed confidence in grape growing as an industry in the Upper Mississippi River Valley region.

The petitioner explains that two management areas, Major Land Resource Area (MLRA) 105 and the Driftless Area Initiative (DAI), help to define the proposed viticultural area. The United States Department of Agriculture, Natural Resources Conservation Service (NRCS), oversees the management of MLRAs. MLRA 105 comprises the Paleozoic Plateau, which more recent glacial incursions surrounded, bypassed, and preserved as a rugged, bedrock-controlled environment with soils lacking the glacial drift of areas outside the MLRA boundary. Thus, it encompasses a vast area that has similar soils, climate, water resources, and land uses. It includes portions of four states: Southeastern Minnesota, southwestern Wisconsin, northeastern Iowa, and northwestern Illinois. It roughly corresponds to the boundary of, but is 4 percent smaller than, the proposed viticultural area.

The DAI, according to the petitioner, comprises the Midwest Driftless Area with its atypical lack of glacial till. It was created and is managed conjointly by the Resource Conservation and Development Councils under the NRCS in the four-state area. The DAI is mandated to conserve land, water, and habitat resources that are strongly influenced by the dramatic landscape. In some areas the DAI boundary slightly extends beyond the MLRA 105 boundary to more fully capture included watersheds and transitional areas of increasing glacial drift.

The petitioner uses State and interstate highways to define the boundary of the proposed Upper Mississippi River Valley viticultural area. The highways are marked on the USGS maps and form a boundary that comprises these important, interrelated components of the proposed viticultural area: The Upper Mississippi River National Wildlife and Fish Refuge, the Paleozoic Plateau, MLRA 105, the Driftless Area, and the Upper Mississippi River watershed.

According to the petitioner, the proposed Upper Mississippi River Valley viticultural area includes steep-sided cliffs, bluffs, deeply entrenched stream valleys, and karst features. It has more hills, ridges, areas of thinner glacial till, and thus better drainage for grapes than areas outside the proposed boundary. Outside the proposed boundary, the topography consists of smoother landforms of unconsolidated materials, glacial drift that is thicker than that within the proposed boundary, and alluvium.

The petitioner explains that how the Mississippi River is divided varies among individuals, commercial entities, and public agencies. The petitioner notes that “* * * the Mississippi River, sometimes in conjunction with its valley, is discussed as having upper and lower segments.” Others, however, refer to the upper, middle, and lower Mississippi.

The petitioner explains further that the southern boundary line of the proposed Upper Mississippi River Valley viticultural area correlates with the southern border of the Upper Mississippi Fish and Wildlife Refuge established in 1924. The Wapsipinicon River watershed closely parallels the eastern and southern boundary lines of the proposed viticultural area. Interstate Highway 80, which serves as a portion of the southern boundary line of the proposed viticultural area, approximates the Wapsipinicon River watershed boundary line.

The petitioner explains that the southern boundary of the proposed viticultural area correlates with the southern boundary of the U.S. Department of Agriculture Hardiness Zone 4b. Also, based on research information provided by Professor Paul Domoto, PhD, Department of Horticulture, Iowa State University, the average minimum winter temperatures within the proposed Upper Mississippi River Valley viticultural area are −15 to −20 degrees F. To the south, they are −10 to −15 degrees F.

According to the petitioner, the southern portion of the boundary of the proposed viticultural area continues for a few miles south of the established southern portion of the boundary of MLRA 105. Also, the western portion of the boundary of the proposed viticultural area includes a portion of the adjacent MLRA 104 to encompass the entire watershed of the Wapsipinicon River, a primary tributary of the Upper Mississippi River.

The proposed Upper Mississippi River Valley viticultural area includes the established 28,000-acre Lake Wisconsin viticultural area, the petitioner explains. The Wisconsin River, which forms Lake Wisconsin, is a major tributary to the Upper Mississippi River.

The petitioner states that the Lake Wisconsin viticultural area is comprised of soil orders and Driftless Area topography similar to those of the proposed Upper Mississippi River Valley viticultural area. Regarding the Lake Wisconsin viticultural area, which has a few glacial deposits at the higher elevations, according to the petitioner, geologists view that area as a transitional glacial area. (The original Lake Wisconsin viticultural area (T.D. ATF-352, 59 FR 537, January 5, 1994) describes the area as a transitional zone between the glaciated topography to its east and the unglaciated, driftless topography to its west.)

The petitioner asserts that the distinguishing features of the proposed Upper Mississippi River Valley viticultural area include its geology, unglaciated topography, climate, soils, and hydrology. The Wisconsin ice age affected the region and provided a basis for most of the distinguishing features of the proposed viticultural area, specifically topography, soils, and hydrology.

The petitioner explains that a significant event in the geologic history of the proposed Upper Mississippi River Valley viticultural area was the impact of the massive Wisconsin Glacier during the Wisconsin ice age. The glacier, which had lobes in Minnesota and Iowa, started melting 15,000 years ago and retreated northward toward Canada. The resulting glacial water flows combined with the Glacial St. Croix River and drained Glacial Lake Duluth, known now as Lake Superior. The relatively sediment-free drainage of Glacial Lake Duluth helped carve the Upper Mississippi River Valley channel to a depth of about 250 meters, or 820 feet. Eventually, alluvial deposits started refilling the river channel, beginning a process that has continued into modern times.

According to the petitioner, the development of the Upper Mississippi River impacted the regional topography and landforms. The tributary valleys include terraces, older flood plain deposits, and entrenched and hanging meanders (streams). These features show the complexity of the alluvial history and river development associated with glacial melting and drainage diversions.

The petitioner states that surface materials, especially along the Paleozoic Plateau, date to 100,000 years in age. The younger materials that are outside the proposed boundary and that are largely the result of glacial erosion and glacial till date to 10,000 years in age, or 90,000 years younger than the surface materials on the Paleozoic Plateau.

The petitioner explains that streams in the proposed Upper Mississippi River Valley viticultural area cut deep dissections through the inclined landforms and exposed Paleozoic rock. The exposed rock, which varies in age from 350 to 600 million years old, is predominantly dolomite, limestone, and sandstone.

The Driftless Area of the Upper Mississippi River Valley has a unique topography and subsurface structure because a direct glacial incursion did not occur in that area during the most recent Wisconsin ice age, the petitioner explains. Consequently, the topography does not have substantial amounts of materials deposited by glaciers. The petitioner notes that the proposed boundary divides the rugged, dissected, bedrock-controlled landscapes within the Upper Mississippi River Valley from the gently rolling landscapes that have lower relief and glaciated, erosional surfaces and that are outside the valley.

Bedrock control in the proposed area, the petitioner explains, refers to the entrenched valleys and karst that constitute an integrated drainage network. The karst topography of the proposed viticultural area includes underground caves, sinkholes, springs, and subsurface caverns. According to the petitioner, rivers and underground water flows are general features throughout the proposed Upper Mississippi River Valley viticultural area, which has none of the natural lakes that direct glacial movement normally creates. Outside the boundary of the proposed Upper Mississippi River Valley viticultural area, the petitioner continues, the topography consists of unconsolidated, heavily dissected soil material along substantial deposits of glacial materials on smooth, rolling hills.

The elevations of the Upper Mississippi River Valley viticultural area, the petitioner states, range from 660 feet on valley floors to 1,310 feet on high ridges. Outside the boundary of the proposed viticultural area, elevations average 250 feet higher to the northwest and 165 feet lower to the southeast.

The petitioner explains that north of the boundary of the proposed Upper Mississippi River Valley viticultural area, loess covers the level-to-rolling till plains. Elevations change little on the plains.

East of the boundary of the proposed Upper Mississippi River Valley viticultural area, the landscape is dominated by a glaciated plain that has belts of morainic hills, ridges, and washout terraces. (TTB notes that morainic hills are accumulations of soil and stones that glacial activity has left.) Also, elevations generally vary several feet, except for the 80- to 330-foot-high moraines, drumlins, and bedrock escarpments.

South of the boundary of the proposed Upper Mississippi River Valley viticultural area are rolling, hilly, loess-covered plains and some broad, level uplands in the southwest region. Elevations there also generally vary by only several feet, except on the upland flats, where elevation changes up to 200 feet.

West of the boundary of the proposed Upper Mississippi River Valley viticultural area the landscape is a nearly level to gently sloping till plain. Elevations generally vary by several feet.

The soils common to the proposed Upper Mississippi River Valley viticultural area, the petitioner states, are stony or rocky soils on steep slopes. The petitioner provides comparative soil data for the proposed viticultural area and the surrounding regions. The data, which show differences and similarities of the soils, are listed in the table below.

The petitioner explains that within the boundary of the proposed Upper Mississippi River Valley viticultural area, Argiudolls (Tama, Dodgeville, Richwood, and Dakota series) and Hapludolls (Muscatine series) are on nearly level to gently sloping benches and broad ridge tops. Hapludolls (Frontenac, Broadale, and Bellechester series) are on steep slopes bordering major valleys. Well drained Udifluvents (Dorchester, Chaseburg, and Arenzville series) are along stream bottoms. Quartzipsamments (Boone series) are on steep slopes. Also, Udipsamments (Plainfield and Gotham series) are on nearly level stream benches.

Overall, the soils on steep hills and ridges and those formed in comparatively thinner glacial till within the proposed viticultural area have good natural drainage for grapes. Although they have much clay, generally they have access to water and in numerous areas are on south-facing slopes, creating microclimates beneficial to grapes. The soils outside the proposed boundary generally formed in deeply dissected, thicker glacial drift and alluvium over unconsolidated materials on smooth, gently rolling landscapes. After precipitation they require tile drainage because of glacial pools and the generally lower relief.

The petitioner states that steep slopes, bluffs, numerous rock outcrops, waterfalls and rapids, sinkholes, springs, and entrenched stream valleys combine to create multiple microclimates within the proposed Upper Mississippi River Valley viticultural area. Also, the combination of microclimates and diverse settings supports varied flora and fauna communities not found outside the boundary of the proposed viticultural area.

The petitioner provides temperature and precipitation data for the proposed Upper Mississippi River Valley viticultural area and its surrounding regions. Those climatic differences are presented in the table below.

According to petition data, the proposed Upper Mississippi River Valley viticultural area has, on average, a warmer annual temperature range than that of the surrounding locations to the north and east. In the areas to south and west, the annual average temperature range is several degrees higher than that in the proposed viticultural area.

The annual average frost-free period within the proposed Upper Mississippi River Valley viticultural area is longer than that in the area to the north and shorter than that in the area to the south, according to petition data. The range of the annual frost-free period in the proposed viticultural area is greater than in the neighboring areas to the east and west.

The petition data show the precipitation range of the proposed Upper Mississippi River Valley viticultural area as compared to that in the surrounding areas. The annual average precipitation range is higher in the proposed Upper Mississippi River Valley viticultural area than in the area to its north. The areas to the south, west, and east receive approximately the same annual average precipitation, in the same pattern, as the proposed viticultural area. The precipitation during the growing season is greater in the areas to the north, south, and east than in the proposed viticultural area, and approximately the same in the area to the west of the proposed viticultural area.

The petitioner provides hydrological data that show the growing conditions, including the relationship between the soils and the hydrological characteristics of the proposed Upper Mississippi River Valley viticultural area and its surrounding regions. The hydrological data are presented in the table below.

In most years the moderate precipitation of the proposed Upper Mississippi River Valley viticultural area, the petitioner explains, is usually adequate for both the human population and agriculture. Ground water, the petitioner states, remains abundant in outwash deposits of valleys, but on uplands it varies in quantity. Bedrock aquifers also provide extensive ground water resources within the proposed viticultural area and in the area to its west.

TTB concludes that this petition to establish the 29,914-square-mile Upper Mississippi River Valley American viticultural area merits consideration and public comment as invited in this notice.

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and we list them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Upper Mississippi River Valley,” will be recognized under 27 CFR 4.39(i)(3) as a name of viticultural significance. The text of the proposed regulation clarifies this point. Consequently, wine bottlers using “Upper Mississippi River Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin.

For a wine to be eligible to use a viticultural area name as an appellation of origin or a term of viticultural significance in a brand name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name or other term of viticultural significance appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a previously approved label uses the name “Upper Mississippi River Valley” for a wine that does not meet the 85 percent standard, the previously approved label will be subject to revocation upon the effective date of the approval of the Upper Mississippi River Valley viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are interested in receiving comments on the sufficiency and accuracy of the name, climatic, boundary, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Upper Mississippi River Valley viticultural area on wine labels that include the words “Upper Mississippi River Valley” as discussed above under Impact on Current Wine Labels, we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are particularly interested in any comments on whether the evidence regarding name and distinguishing geographical features is sufficient to warrant the establishment of this new viticultural area that entirely encompasses the existing Lake Wisconsin viticultural area. We are also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the viticultural area.

You may submit comments on this notice by using one of the following two methods:

• Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this notice within Docket No. TTB-2008-0007 on “Regulations.gov,” the Federal e-rulemaking portal, at http://www.regulations.gov . A direct link to that docket is available under Notice No. 88 on the TTB Web site at http://www.ttb.gov/wine/wine_rulemaking.shtml . Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

• U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 88 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

We will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments we receive about this proposal within Docket No. TTB-2008-0007 on the Federal e-rulemaking portal, Regulations.gov, at http://www.regulations.gov . A direct link to that docket is available on the TTB Web site at http://www.ttb.gov/wine/wine_rulemaking.shtml under Notice No. 88. You may also reach the relevant docket through the Regulations.gov search page at http://www.regulations.gov . For instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting.

You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- × 11-inch page. Contact our information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials.

We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

N.A. Sutton of the Regulations and Rulings Division drafted this notice.

For the reasons discussed in the preamble, we propose to amend title 27, chapter 1, part 9, Code of Federal Regulations, as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

Administrative Procedure Act Statement. This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and do not fall under the APA.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

Administrative Procedure Act Statement. This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and do not fall under the APA.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

Administrative Procedure Act Statement. This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and do not fall under the APA.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

Electronic Access and Filing

You may submit or retrieve comments online through http://www.regulations.gov , which is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the Web site.

An electronic copy of this document may also be downloaded from Office of the Federal Register's home page at http://www.archives.gov/federal_register and the Government Printing Office's Web page at http://www.gpoaccess.gov .

We will accept written comments and information during this reopened comment period on our revised proposed designation of critical habitat for the 12 Hawaiian picture-wing fly species that was published in the Federal Register on November 28, 2007 (72 FR 67428), the June 2008 DEA of Critical Habitat Designation for the Hawaiian Picture-wing Flies, and this document, including the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons why we should or should not designate habitat as critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq. ), including whether the benefit of designation would outweigh threats to the species caused by the designation, such that the designation of critical habitat is prudent;

(2) Specific information on:

(a) The amount and distribution of habitat for the 12 Hawaiian picture-wing fly species;

(b) What areas occupied at the time of listing contain features essential for the conservation of the species we should include in the designation and why, and

(c) Which areas not occupied at the time of listing are essential to the conservation of the species and why.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on the proposed critical habitat.

(4) Information on the extent to which any State and local environmental protection measures we reference in the DEA may have been adopted largely as a result of the species' listing.

(5) Information on whether the DEA identifies all State and local costs and benefits attributable to the proposed critical habitat designation, and information on any costs and benefits that we have overlooked.

(6) Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes that are likely to occur if we designate critical habitat as currently proposed.

(7) Information on whether the DEA identifies all costs and benefits that could result from the designation.

(8) Information on whether the DEA correctly assesses the effect on regional costs or benefits associated with any land use controls that may result from the proposed designation.

(9) The extent to which the description in the DEA of economic impacts to public land management and other activities is complete and accurate.

(10) Information on areas that the critical habitat designation could potentially impact to a disproportionate degree.

(11) Economic data on the incremental costs of designating any particular area as critical habitat.

(12) Information on any quantifiable economic or other potential benefits of the proposed designation of critical habitat. Factors which may be considered under the potential benefits of critical habitat designation may include, but are not limited to, aesthetic considerations, recreational use, biodiversity, aquatic resources, intrinsic values, and benefits to local communities.

(13) Any foreseeable economic, national security, or other relevant impacts that may result from the proposed designation, and in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts. Other impacts in addition to economic effects that may be considered in the designation of critical habitat may include, but are not limited to, social factors, ecological factors, and impacts on local communities.

(14) Whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act, after considering the potential impacts and benefits of the proposed critical habitat designation.

(15) Whether we could improve or modify our approach to designating critical habitat to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

If you submitted comments or information during the initial comment period from November 28, 2007, to January 28, 2008, on the proposed rule (72 FR 67427), please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in preparation of our final determination. Our final determination concerning revised proposed critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, and are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

You may submit your comments and materials concerning our proposed rule, the associated DEA, and our amended required determinations by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this notice, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

You may obtain copies of the proposed rule and DEA by mail from the Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ), by visiting the Federal eRulemaking Portal at http://www.regulations.gov, or on our Web site at http://www.fws.gov/pacificislands.

Under the terms of a settlement agreement approved by the U.S. District Court for the District of Hawaii on August 31, 2005 ( CBD v. Allen, CV-05-274-HA), we were to (1) make a final listing decision for the 12 picture-wing flies by May 6, 2006; (2) propose to designate critical habitat by September 15, 2006; and (3) finalize a critical habitat rule by April 17, 2007. A joint stipulation was approved by the Court on April 18, 2007, to allow additional time to reconsider the proposed rule in light of comments received to the August 15, 2006, proposed designation of approximately 18 acres as critical habitat for 11 of the 12 species of Hawaiian picture-wing flies (71 FR 46944), and to provide an opportunity for additional public comment. Under the terms of the extension, we were required to submit a proposed critical habitat rule to the Federal Register by November 15, 2007, and a final critical habitat rule by November 15, 2008.

On November 28, 2007, we published a revised proposed designation of approximately 9,238 acres (ac) (3,738 hectares (ha)) as critical habitat in four counties (City and County of Honolulu, Hawaii, Maui, and Kauai), in Hawaii in the Federal Register (72 FR 67427). For additional information on previous Federal actions concerning the 12 species of Hawaiian picture-wing flies for which we are proposing to designate critical habitat, refer to the November 28, 2007, proposed revised designation of critical habitat and the final listing rule published in the Federal Register on May 9, 2006 (71 FR 26835).

It is our intent to discuss only those topics directly relevant to the proposed designation of critical habitat in this notice. For more information on the taxonomy and biology of the 12 species of Hawaiian picture-wing flies, refer to the final listing rule published in the Federal Register on May 9, 2006 (71 FR 26835), and the revised proposed critical habitat rule published in the Federal Register on November 28, 2007 (72 FR 67428).

Section 3 of the Act defines critical habitat as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the provisions of section 4 of the Act, on which are found those physical or biological features (a) essential to the conservation of the species, and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed in accordance with the provisions of section 4 of the Act, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit the destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions that may affect areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a DEA of the proposed revised critical habitat designation based on our November 28, 2007, proposed rule to designate critical habitat for 12 species of Hawaiian picture-wing flies. We request comment on the accuracy of our methodology for distinguishing baseline and incremental costs, the assumptions underlying it, and alternate methodologies that may merit consideration.

The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the 12 Hawaiian picture-wing fly species. The DEA quantifies the economic impacts of all potential conservation efforts for the 12 Hawaiian picture-wing fly species; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing two types of impacts: (1) Baseline impacts are those that would occur with or without designation of critical habitat, and (2) incremental impacts are those that would occur only with critical habitat designation. Baseline impacts represent the costs incurred regardless of whether critical habitat is designated. Incremental impacts represent the costs incurred specifically with the designation of critical habitat for the 12 Hawaiian picture-wing fly species. In other words, the incremental costs are those attributable solely to the designation of critical habitat for the picture-wing flies that are above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the 12 Hawaiian picture-wing fly species were listed, and forecasts both baseline and incremental impacts likely to occur after the proposed critical habitat is finalized. The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the 12 Hawaiian picture-wing fly species from 2009 through 2028.

The draft economic analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. Decision-makers can use the information from the final economic assessment to assess whether the effects of the revised designation might unduly burden a particular group or economic sector. The draft economic analysis also looks retrospectively at costs that have been incurred since May 9, 2006, the date we listed the 12 Hawaiian picture-wing fly species under the Act (71 FR 26835), and considers those costs that may occur in the 20 years following the designation of critical habitat. Because the draft economic analysis considers the potential economic effects of all actions relating to the conservation of the 12 Hawaiian picture-wing fly species, including costs associated with sections 4, 7, and 10 of the Act and those attributable to the revised designation of critical habitat, it may overestimate the potential economic impacts of the critical habitat designation.

The analysis quantifies economic impacts of picture-wing fly critical habitat designation associated primarily with the following activities: (1) Preservation and watershed management in all but the Pit Crater unit on the Big Island; (2) game management and public recreational hunting in most of the units where land is owned by the State; (3) potential for future development on about 3 acres (1.2 hectares) of the Pit Crater unit on the Big Island; (4) harvesting of commercial timber from portions of the Stainback Forest and Waiakea Forest units; and (6) section 7 consultation administrative costs.

The total pre-designation baseline costs during the period from 2006 to 2008 in the area proposed for critical habitat designation are estimated by the DEA to range from $750,130 using a 3 percent discount rate to $808,100 using a 7 percent discount rate. Because these costs are projected to occur whether critical habitat is designated or not, they cannot be considered in the Service's determination of whether the benefits of including an area as critical habitat outweigh the benefits of excluding the area. These costs are related to preservation and watershed management activities, and all or nearly all of the pre-designation baseline costs have been or will be borne by Federal and State agencies. A portion of the preservation and watershed management costs has been borne by a few private landowners.

The annualized post-designation baseline costs during the period 2009 to 2028 for preservation and water management activities are estimated to range from $348,845 using a 3 percent discount rate to $379,753 using a 7 percent discount rate. Because these costs are projected to occur whether critical habitat is designated or not, they would not be considered in the Service's determination of whether the benefits of including an area as critical habitat outweigh the benefits of excluding the area. All or nearly all of the post-designation baseline costs would be borne by Federal and State agencies, although a portion of the preservation and watershed management costs would be borne by a few private landowners. The combined post-designation baseline cost for these conservation activities is estimated by the DEA to be $5,345,730 at a 3 percent discount rate, and $4,305,470 at a 7 percent discount rate.

The DEA estimates that the annualized post-designation incremental costs for the activities described below during the period 2009 to 2028 may range from $44,733 using a 3 percent discount rate to $46,916 using a 7 percent discount rate. If we determine that these costs would occur as a result of critical habitat designation, they can be considered in our analysis of whether the benefits of including an area as critical habitat outweigh the benefits of excluding the area. The activity having the highest incremental cost ranking is preservation and watershed management, with an annualized value of approximately $23,969 using a 3 percent discount rate to $25,568 using a 7 percent discount rate. The second highest cost reflects a possible opportunity loss of harvesting trees in the Stainback Forest and Waiakea Forest units, resulting in an annualized value of approximately $12,693 using a 3 percent discount rate to $12,176 using a 7 percent discount rate.

There may also be post-designation incremental costs of $68,590 using a 3 percent discount rate to $56,000 using a 7 percent discount rate from 2009-2028, related to future section 7 consultations for preservation and watershed management activities. All or nearly all of the post-designation incremental costs would be borne by Federal and State agencies, although a portion of the preservation and watershed management costs would be borne by a few private landowners. The combined post-designation incremental cost for all activities is projected to be $685,450 using a 3 percent discount rate, and $531,780 using a 7 percent discount rate.

Only the incremental costs of designating critical habitat, over and above the costs associated with species protection under the Act more generally, may be considered in designating critical habitat. Therefore, the methodology for distinguishing these two categories of costs is important. This is particularly true in the current case, where approximately 90 percent of the total costs of species conservation over the next 20 years are projected to be baseline costs, and 10 percent are projected to be incremental costs associated with the critical habitat designation.

In the absence of critical habitat, Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered species or threatened species—costs associated with such actions are considered baseline costs. Once an area is designated as critical habitat, proposed actions that have a Federal nexus in this area will also require consultation and potential revision to ensure that the action does not result in the destruction or adverse modification of designated critical habitat. Costs associated with these actions are considered incremental costs. The DEA explains that incremental section 7 consultation that takes place as a result of critical habitat designation may fall into one of three categories: (1) Additional effort to address adverse modification in a consultation that also involves jeopardy; (2) re-initiation of a previously concluded consultation to address adverse modification; and (3) new consultation resulting entirely from critical habitat designation ( i.e. , where a proposed action may affect unoccupied critical habitat). The DEA estimates that there would be three project-level informal consultations related to Federal grants that would need to be reinitiated in 2009 to address picture-wing fly critical habitat. There would also be one programmatic consultation that would need to be reinitiated in 2009 related to the Hawai'i Volcano National Park management plan, and subsequent programmatic consultations every five years. The DEA indicates that since these consultations would be for preservation and watershed management activities, no or only minimal project modifications would be anticipated.

We are soliciting data and comments from the public on the DEA, as well as on all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or its supporting documents to incorporate or address information we receive during this comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided the exclusion will not result in the extinction of the species.

Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact. Under section 4(b)(2) of the Act, we must consider all relevant impacts, including economic impacts. For example, we consider whether there are landowners that have developed conservation plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion of lands from, critical habitat. We also consider any social impacts that might occur because of the designation. During the development of a final designation, we will consider economic and other relevant impacts, including additional conservation plans that may be available, with regard to potential exclusion from the final critical habitat designation under section 4(b)(2) of the Act.

In preparing this notice, we have determined that voluntary conservation efforts by private landowners are vital for the conservation and recovery of the 12 Hawaiian picture-wing fly species. As one example, significant progress has been made in habitat restoration on Maui Land and Pineapple Company's (MLP) lands within the Puu Kukui Watershed Management Area (PKWMA), located in the West Maui Mountains. The proposed 584-acre (237-ha) critical habitat unit boundary for Drosophila neoclavisetae (Puu Kukui Unit 1) falls completely within the PKWMA. Since 1988, the MLP has proactively managed their 450 acres (182 hectares (ha)) within the PKWMA and is currently in its 15th year of contract with the State of Hawaii's Natural Area Partnership (NAP) Program to preserve the native biodiversity of the company's conservation lands. At just over 8,600 acres (3,483 ha), the PKWMA is the largest privately owned preserve in the State.

In 1993, the MLP became the first private landowner participant in the NAP program. They are pursuing four management programs stipulated in their Long Range Management Plan that emphasizes reducing nonnative species that immediately threaten the management area (Maui Land and Pineapple Company 1999). The primary management goals within PKWMA are to: (1) Eliminate ungulate activity in all Puu Kukui management units; (2) reduce the range of habitat-modifying weeds and prevent introduction of nonnative plants; (3) reduce the negative impacts of non-native invertebrates and small animals; (4) monitor and track biological and physical resources in the watershed in order to improve management understanding of the watershed's resources; and (5) prevent the extinction of rare species within the watershed. Specific management actions to address feral ungulates include the construction of fences surrounding 10 management units and removal of ungulates within the PKWMA.

The nonnative plant control program within PKWMA focuses on weeds that modify habitat, prioritizing weeds according to the degree of threat to native ecosystems, and preventing the introduction of new weeds. The weed control program includes mapping and monitoring along established transects and manual/mechanical control. Natural resource monitoring and research address the need to track biological and physical resources of the PKWMA, and evaluate changes to these resources in order to guide management programs. Vegetation is monitored through permanent photographic points, nonnative species are monitored along permanent transects, and rare, endemic, and indigenous species are monitored. Logistical and other support for approved research projects, interagency cooperative agreements, and remote survey trips within the watershed are also provided.

At this time, we are evaluating the sufficiency of protection that the conservation activities being conducted by the MLP are providing for the 12 picture-wing flies and features essential for their conservation on their lands (450 acres (182 ha)) that fall within the 584-acre (237-ha) proposed critical habitat unit (Puu Kukui Unit 1). Therefore, we are specifically soliciting public comments on the possible exclusion of the MLP lands within proposed Puu Kukui Unit 1 under section 4(b)(2) of the Act.

The benefits of including lands in critical habitat can be regulatory, educational, or promote the recovery of species. The principal regulatory benefit of designating critical habitat in this area would be that Federal actions affecting D. neoclavisetae would require consultation under section 7 of the Act. Consultation would ensure that a proposed action does not result in the destruction or adverse modification of critical habitat. The most likely Federal nexus would be associated with Service funding for management activities that target invasive species removal, and the likely outcome of a section 7 consultation would be conservation recommendations to avoid stands of Cyanea kunthiana and Cyanea macrostegia ssp. macrostegia when applying herbicides, or to use backpack sprayers to specifically target herbicide application. However, even in the absence of critical habitat designation, these conservation recommendations would still be included within the PKWMA invasive species control program. Accordingly, we believe that few additional regulatory benefits would be derived by including the MLP lands within the area designated as critical habitat for Drosophila neoclavisetae beyond those conservation benefits already being achieved through the implementation of the PKWMA Watershed Management Plan (WMP).

There have been no section 7 consultations regarding Drosophila neoclavisetae or its host plants with the PKWMA to date. The DEA anticipates that there would be two informal consultations associated with projects to remove non-native species over the next 13 years. It also predicts that no formal consultations would be likely to occur over the 20-year timeframe of the analysis. The two informal section 7 consultations anticipated by the DEA would take place based on the species presence in the area. Accordingly, section 7 consultation under the jeopardy standard would be required for Federal activities that may affect D. neoclavisetae, regardless of critical habitat designation. We do not foresee any additional consultations beyond those anticipated by the DEA, and predict that the section 7 consultation process for critical habitat would be unlikely to result in additional protections for the species. Consequently, there would be little regulatory benefit of designating critical habitat on the MLP lands within Puu Kukui Unit 1.

The final listing rule for the 12 picture-wing flies (71 FR 26835) acknowledged the importance of this area to the overall conservation of Drosophila neoclavisetae (Service 2006). The MLP is aware of the areas where D. neoclavisetae occurs on their property, and is already implementing conservation actions to benefit the species (MLP 2008, p. 2). We therefore believe that any additional educational benefits resulting from the designation of critical habitat on these lands would be minimal. The designation of critical habitat may provide benefits to the recovery of a species, however, in this case the MLP is already committed to implementing conservation actions on their lands under the existing watershed management plan (WMP), and any additional benefits to the recovery of this species beyond those already being realized would be limited.

The MLP has a history of entering into conservation agreements with Federal and State agencies and other private organizations on their lands. These agreements further their mission of practicing prudent stewardship of their land and water resources to ensure the protection of rare and endangered plant and animal species, and water resources crucial to the community. The continued implementation of the WMP by the MLP will benefit Drosophila neoclavisetae through actions that manage invasive species and restore native species habitat. The WMP provides a significant conservation benefit to D. neoclavisetae's host plant populations in the area, and we have a reasonable expectation that the strategies and measures will be effective.

We believe that Drosophila neoclavisetae is benefiting substantially from the MLP's proactive management actions, which include reducing ungulate browsing and habitat conversion, competition with nonnative weeds, and the risk of fire. These management actions also include the reintroduction of currently extirpated native species into restored habitats.

The exclusion of the MLP lands from the proposed Puu Kukui—Unit 1 would allow us to continue working with this landowner in a spirit of cooperation and partnership. The MLP management plan acknowledges a shared interest in promoting healthy ecosystems and in protecting populations and habitat of D. neoclavisetae. Since the area has been actively managed as a preserve since 1988, there is a reasonable expectation that the conservation management strategies and actions will continue to be implemented for the benefit of D. neoclavisetae's habitat in the foreseeable future. Imposing an additional layer of section 7 consultation by designating critical habitat could undermine our existing conservation partnership with the MLP and remove their incentive to accept the additional time and expense of management planning. We believe that the designation of critical habitat would strain the existing proactive working relationship we share with the MLP, and may hinder future cooperative conservation projects.

Excluding the MLP lands from critical habitat designation would acknowledge their positive contribution to conservation on Maui. It would also reduce the cost of additional section 7 consultation, which we believe would be unnecessary. We are hopeful that this recognition would provide other landowners with a positive incentive to undertake voluntary conservation activities on their lands, particularly where there is no regulatory requirement to implement such actions.

We believe the proactive management of Drosophila neoclavisetae habitat provided under the Maui Land and Pineapple Company Watershed Management Plan provides significant benefits to this species. In contrast, the benefits of including their lands as critical habitat would likely be minor, since there have been no section 7 consultations in the area since the species was listed in 2006. If the MLP lands within the proposed Puu Kukui—Unit 1 were to be excluded from critical habitat designation, the Puu Kukui WMA plan would continue to provide conservation benefits to the species through the ongoing implementation of strategies and measures that are consistent with currently accepted principles of conservation biology.

We believe that the exclusion of the MLP lands within the proposed Puu Kukui—Unit 1 from the final designation of critical habitat would not result in the extinction of the species. The continued implementation of their ongoing management programs will provide comparable or greater net conservation benefits than those that would result from critical habitat designation. These management programs provide tangible conservation benefits that reduce the likelihood of extinction for D. neoclavisetae, and increase the likelihood of its recovery. In addition, there are no known threats in the PKWMA associated with Federal actions requiring section 7 consultation, so extinction of the species as a consequence of not designating critical habitat would be unlikely. Further, because the 450 ac (182 ha)) of the MLP's lands we are considering excluding from critical habitat designation are occupied by D. neoclavisetae, section 7 consultation would be required even in the absence of critical habitat designation, and any Federal actions that may affect the species would be evaluated under the jeopardy standard of section 7 of the Act, which provides assurances that the species would not become extinct.

In addition, § 195D-4 of the Hawaii Revised Statutes, Endangered species and threatened species, stipulates that species determined to be endangered or threatened under the Federal Endangered Species Act shall be deemed endangered or threatened under the State law, and that it is unlawful under the State law (with some exceptions) to ”take” such species, or to possess, sell, carry or transport them. The statutory protections provided under State law provide additional assurances that exclusion of the MLP lands from critical habitat designation would not result in extinction of Drosophila neoclavisetae.

In summary, there may be few regulatory, educational, or recovery benefits from the exclusion of the MLP lands from critical habitat designation. On the other hand, there may be greater conservation benefits that would result from the exclusion of these lands, which include the implementation of affirmative actions for controlling invasive species, protecting host plant habitat, monitoring of native species, and restoration activities. Accordingly, we are requesting public comments on whether the benefits of excluding this area from critical habitat designation would outweigh the benefits of its inclusion, and thus whether the MLP lands should be excluded under section 4(b)(2) of the Act.

In our November 28, 2007, proposed critical habitat rule (72 FR 67428), we said that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. In this document we affirm the information in our proposed rule concerning Executive Order (E.O.) 13132, E.O. 12988, the Paperwork Reduction Act, and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA, we revise our required determinations concerning E.O. 12866, the Regulatory Flexibility Act, E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act, and E.O. 12630 (Takings).

The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(b) Whether the rule will create inconsistencies with other Federal agencies' actions.

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d) Whether the rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e. , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed revised designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities.

According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this proposed critical habitat designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed designation of critical habitat for the 12 Hawaiian picture-wing fly species would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement. The designation of critical habitat will not affect activities that do not have any Federal involvement; designation of critical habitat affects activities conducted, funded, permitted, or authorized by Federal agencies.

If we finalize this proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

Chapter 4 of the DEA evaluates the potential economic effects of the proposed revised designation on small entities, based on the estimated incremental impacts associated with the proposed rulemaking. The screening analysis is based on the estimated impacts associated with the proposed rulemaking as described in chapters 3 and 4 and Appendix C of the DEA. The analysis evaluates the potential for economic impacts related to several categories, including: (1) Preservation and watershed management, (2) the purchase of Honouliuli Preserve, (3) game management, (4) timber harvest, (5) property values, and (6) administrative costs associated with section 7 consultation.

Incremental economic impacts associated with section 7 consultations would fall on the U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, National Park Service, and Hawai‘i Department of Lands and Natural Resources. The Hawai‘i Department of Lands and Natural Resources may also experience an incremental economic impact associated with the opportunity loss of not selling mature trees from a portion of the Waiakea Timber Management Area. However, Federal agencies are not considered small entities, and State governments are not considered small government jurisdictions for purposes of the Regulatory Flexibility Act (RFA) and Small Business Regulatory Enforcement Fairness Act (SBREFA).

The Board of Water Supply of the City and County of Honolulu may experience incremental costs for conservation on its land in the Makaha Valley and Mt. Ka‘ala units. However, the RFA/SBREFA defines small governmental jurisdiction as the government of a city, county, town, school district, or special district with a population of less than 50,000. Accordingly, the City and County of Honolulu is not considered a small government jurisdiction.

Nonprofit organizations such as Kamehameha Schools, the Nature Conservancy of Hawai‘i (TNCH), the Queen Emma Foundation, and Watershed Partnerships could experience incremental costs associated with (1) the loss of property value for 3 acres of land in the Pit Crater unit; (2) conservation projects on managed lands including the Pu‘u Kolekole, Pu‘u Kukui, Palikea, Pu‘u Kaua, and Kalua‘a Gulch units; (3) conservation projects on land in the Kohala Mountains West unit; and (4) conservation projects in the Wailupe, Pu‘u Kolekoke, Pu‘u Kukui, Kohala Mountains East, and Kohala Mountains west respectively. However, none of these nonprofit organizations are considered “small organizations” for purposes of the RFA/SBREFA.

The James Campbell Co. LLC, Maui Land and Pineapple Company, Inc., and Moloka‘i Ranch are private companies that could experience incremental impacts associated with critical habitat designation, however, none of these businesses are considered to be small businesses for purposes of the RFA/SBREFA. In this regard, the DEA concludes that none of the incremental economic impacts associated with designating critical habitat would be expected to fall on small entities.

In summary, we have considered whether the proposed critical habitat designation would result in a significant economic impact on a substantial number of small entities, and do not anticipate any substantial impacts on any small entities. We therefore certify that, if promulgated, the proposed revised designation would not have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required.

On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action. The DEA finds none of these criteria relevant to this analysis (Chapter 4 of the DEA). Thus, based on information in the DEA, we do not expect conservation activities within proposed critical habitat for the 12 Hawaiian picture-wing fly species to lead to energy-related impacts. As such, we do not expect the proposed designation of critical habitat to significantly affect energy supplies, distribution, or use, and a Statement of Energy Effects is not required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), we make the following findings:

(a) The rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except as (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) We do not believe that the proposed designation will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The proposed designation of critical habitat imposes no obligations on State or local governments. The SBA does not consider the Federal Government to be a small governmental jurisdiction or entity. Consequently, we do not believe that the revised critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the 12 Hawaiian picture-wing fly species in a takings implications assessment. The takings implications assessment concludes that the proposed designation of critical habitat for the 12 Hawaiian picture-wing fly species does not pose significant takings implications for lands within or affected by the proposed designation.

The primary authors of this notice are the staff of the Endangered Species Program, Pacific Region, U.S. Fish and Wildlife Service.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

On December 26, 2006, we received a petition filed by the State of Idaho and the Idaho Power Company to remove the Bliss Rapids snail from the Federal List of Endangered and Threatened Wildlife in accordance with the provisions of section 4 of the Act.

On June 6, 2007, we published a substantial 90-day finding on the petition to remove the Bliss Rapids snail from the List of Endangered and Threatened Wildlife (72 FR 31250), initiated a status review, and opened a 60-day public comment period. Subsequent to the public comment period, new information has become available that is relevant to our status review. To ensure that the status review is complete and based on the best available scientific information, we are soliciting information on this new information as it relates to the listing status of the Bliss Rapids snail. The new information includes a draft status review for the Bliss Rapid Snail (Draft Status Review), prepared in February 2008; peer reviews of the Draft Status Review; a manuscript examining the genetic structure of Bliss Rapids snail populations; and documentation from a recent expert panel convened to assess the status of the Bliss Rapids snail.

Comments particularly are sought concerning:

(1) Information and data in the Draft Status Review;

(2) Peer review comments on the Draft Status Review;

(3) The relevance of the new genetic information to the listing status of the Bliss Rapids snail;

(4) Information and data used by the expert panel; and,

(5) The expert panel's discussion of threats to the Bliss Rapids snail and ongoing conservation actions or regulatory actions that address these threats.

These materials are available for review at the following Web sites:

If you wish to comment, you may submit your comments and materials concerning this new information related to the petition finding by one of the methods listed in the ADDRESSES section.

If you submit information via http://www.regulations.gov , your entire submission—including your personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this petition finding, will be available for public inspection on http://www.regulations.gov , or by appointment, during normal business hours at the U.S. Fish and Wildlife Service Snake River Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, ID 83709; by telephone at 208/378-5243.

The primary authors of this notice are staff of the Snake River Fish and Wildlife Office, U.S. Fish and Wildlife Service.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).