Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. Comments that will provide the most assistance to the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border Protection (CBP) in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions: All submissions received must include the agency name and DHS Docket No. USCIS-2007-0058 for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.

U.S. employers in seasonal and certain other industries have, in the past, faced a shortage of U.S. workers who are able, willing, and qualified to fill temporary non-agricultural jobs, and who would be available at the time and place needed to perform the work. To meet this need, U.S. employers have turned to hiring foreign workers. One avenue open to such employers is to petition for foreign workers who qualify within the H-2B nonimmigrant classification. Immigration and Nationality Act (Act or INA) sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 CFR 214.2(h)(1)(ii)(D) and (h)(6)(i). According to the DOL Employment and Training Administration, the top three occupations for which U.S. employers utilize the H-2B program are landscape laborers, housekeeping cleaners, and construction workers.

The H-2B nonimmigrant classification applies to foreign workers coming to the United States temporarily to perform temporary, non-agricultural labor or services. INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 CFR 214.1(a)(2) (H-2B classification designation). Such workers may not displace U.S. workers who are capable of performing such services or labor. 8 CFR 214.2(h)(6)(i). In addition, their employment may not adversely affect the wages and working conditions of U.S. workers. Id.

The total number of aliens who enter the United States pursuant to H-2B visas or who are accorded H-2B nonimmigrant status during either the first or last 6 months of a fiscal year is limited to 33,000, for a total of 66,000 for the entire fiscal year. 1 INA sec. 214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10). During the past several fiscal years, the demand for new H-2B workers has exceeded these limits. Moreover, the H-2B cap for each half of the fiscal year has been reached progressively earlier in recent years and prospective employers are thus increasingly anxious about their ability to secure necessary H-2B workers each year.

A USCIS-approved Form I-129, “Petition for Nonimmigrant Worker” (hereinafter, “H-2B petition”) is required before a foreign worker may seek H-2B nonimmigrant status. 8 CFR 214.2(h)(2)(i)(A). Depending on the circumstances, the petitioner must be a U.S. employer, a U.S. agent, or a foreign employer filing through a U.S. agent. 8 CFR 214.2(h)(6)(iii)(B). With a limited exception, an employer currently may not file a petition for an H-2B temporary worker unless that employer has obtained a temporary labor certification from the Secretary of Labor (or the Governor of Guam for employment on Guam). 8 CFR 214.2(h)(6)(iv)(A) and (h)(6)(v)(A). To obtain a temporary labor certification, a prospective employer must test the U.S. labor market as to the availability of qualified U.S. workers and be willing to pay the alien a salary that will not adversely affect the wages and working conditions of similarly employed U.S. workers. 20 CFR 655.3(a); 8 CFR 214.2(h)(6)(iv)(A)(1). Based on the labor certification, the H-2B petitioner files the H-2B petition with the appropriate USCIS service center. See 8 CFR 214.2(h)(2)(i)(A). If, however, the petitioner receives notice from the Secretary of Labor that the certification cannot be made (referred to as a “Non Determination Notice”), the petitioner nevertheless may file the H-2B petition with USCIS, but must include countervailing evidence to overcome the lack of such certification. 8 CFR 214.2(h)(6)(iv)(D).

Under current regulations, an H-2B petitioner must, at the time of filing, include in its petition the names of all beneficiaries, except in emergent situations involving multiple beneficiaries. See 8 CFR 214.2(h)(2)(iii). The H-2B petition also must include documentation that each beneficiary qualifies for the job offer as specified in the labor certification, where such job requires any education, training, experience, or other special requirements. 8 CFR 214.2(h)(6)(vi)(C).

The H-2B petition must establish that the petitioner's need for the services or labor is temporary, regardless of whether the underlying job is permanent or temporary. 8 CFR 214.2(h)(6)(ii). The petitioner's need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. 8 CFR 214.2(h)(6)(ii)(B). One-time occurrence employment is where the employer has not employed workers to perform the services in the past and will not need workers to perform the services in the future, or where the employer has an employment situation that is otherwise permanent but a temporary event of short duration has created the need for a temporary worker. 8 CFR 214.2(h)(6)(ii)(B)(1). Employment of a seasonal nature is recurring employment that is tied to a certain time of year by a predictable event or pattern and requires labor levels far above those necessary for ongoing operations. 8 CFR 214.2(h)(6)(ii)(B)(2). Employment involving a peak-load need is where the employer regularly employs permanent workers to perform the services or labor at the place of employment and the employer needs to supplement the permanent staff on a temporary basis tied to a seasonal or short-term demand. 8 CFR 214.2(h)(6)(ii)(B)(3). Such temporary peak-load additions to staff may not become a part of the petitioner's regular operation. Id. Intermittent need is where an employer has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform the services or labor for short periods. 8 CFR 214.2(h)(6)(ii)(B)(4).

As a general rule, the period of the petitioner's need must be less than one year, absent extraordinary circumstances. 8 CFR 214.2(h)(6)(ii)(B). With certain exceptions for commuters and workers who do not reside continually in the United States and whose employment is seasonal, intermittent or for six months or less per year, an H-2B nonimmigrant may hold H-2B nonimmigrant status for a maximum period of three years, following which he or she must depart from the United States for at least six months before he or she may again be admitted in H-2B or any other status under section 101(a)(15)(H) or (L) of the INA. 8 CFR 214.2(h)(13)(iv) and (v).

The H-2B program is most intensively used among businesses in seasonal industries that frequently have a difficult time locating temporary workers. USCIS is aware, however, that the current H-2B program regulations do not accommodate as effectively as possible the needs of U.S. employers and alien workers who use, or want to use, the H-2B program. Therefore, USCIS is proposing a number of significant changes to the H-2B regulations to reduce or eliminate burdens and restrictions that hinder employers' ability to effectively use this visa category. In addition, USCIS proposes to enhance the protection of H-2B workers by curtailing abuses related to employment fees and visa selling that could lead to human trafficking and alien worker indenture. Additionally, worker protections are enhanced through strengthened revocation and debarment procedures and employer sanctions for a substantial or willful failure to meet the terms of the attestations.

USCIS is proposing to amend 8 CFR 214.2(h)(2)(iii) to allow employers petitioning for aliens to fill H-2B positions to specify only the number of positions sought and not name the individual alien(s), except where the alien is already present in the United States. The H-2B program is overseen by three Federal government agencies: The Department of Labor (DOL) issues the H-2B temporary labor certifications and oversees compliance with employment laws; USCIS adjudicates the H-2B petitions; and, if the petitions are approved, the Department of State issues the H-2B visas to the workers at consulates overseas. In the event that the Department and DOL work out a mutually agreeable delegation of authority from DHS to DOL, enforcement of the terms of the petition will be the responsibility of DOL. As this entire process, from temporary labor certification to issuance of an H-2B visa, can take up to several months, many H-2B employers often start the temporary labor certification and petitioning processes several months ahead of the actual date of stated employment need. Having to name beneficiaries that far in advance increases the likelihood that those beneficiaries may ultimately be unavailable to fill the positions. By eliminating the requirement to name beneficiaries outside of the United States on the petition, USCIS believes that H-2B employers would have more flexibility to recruit foreign workers who are actually interested in and available on the date of stated need. Conforming amendments have been made to proposed 8 CFR 214.2(h)(6)(vi)(C).

Once an H-2B worker has reached the three-year ceiling on H-2B nonimmigrant status, current regulations require the worker to wait six months outside the United States immediately prior to filing for an extension, change of status, or readmission to the United States in H-2B status or other status under section 101(a)(15)(H) or (L) of the INA. 8 CFR 214.2(h)(13)(iv). This rule proposes to reduce the required absence period to three months. This would reduce the amount of time employers would be required to be without the services of needed workers while not offending the fundamental temporary nature of employment under the H-2B program.

An alien worker who violates his or her status may be subject to administrative proceedings before an immigration judge to remove the alien from the United States. See INA sections 237(a)(1)(C), 239(a), 240(a); 8 U.S.C. 1227(a)(1)(C), 1229(a), 1229a(a). A removal order typically includes the name of the country to which the alien is to be removed, which usually is the alien's country of nationality. In order to effectuate the removal order, DHS must ensure that the alien has the necessary travel documents (e.g., passport) to return to the named country and that the country agrees to receive the alien. DHS has faced an ongoing problem of countries refusing to accept or unreasonably delaying the acceptance of their nationals who have been ordered removed. To combat this problem, Congress gave the Secretary of State the authority to discontinue the issuance of visas to citizens, subjects, nationals, and residents of a country upon notification by the Secretary of Homeland Security that the government of that country refuses to accept their return. INA sec. 243(d), 8 U.S.C. 1253(d); see also Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) sec. 307, Pub. L. No. 104-208, 110 Stat. 3456 (September 30, 1996).

In an effort to further address this problem, this rule proposes to preclude USCIS from approving a petition filed on behalf of one or more aliens from countries that the Secretary of Homeland Security has found to have consistently refused to accept or unreasonably delayed the prompt return of their citizens, subjects, nationals or residents. See proposed 8 CFR 214.2(h)(6)(i)(D); see also INA secs. 214(a)(1), 215(a)(1) and 243(d). The Secretary will periodically review determinations that countries have consistently refused to accept or unreasonably delayed accepting their nationals to ensure that the determinations are still justified. These provisions are intended to encourage more nations to promptly accept the return of nationals subject to a final order of removal.

DHS expects that the proposals in this rule will increase the flexibility and attractiveness of the H-2B visa program, together with the modernizing proposals the DOL is making in its H-2B rule. DHS hereby invites comments from the public on additional or alternative approaches to the repatriation problem described above, such as restricting eligibility to nationals of countries that provide the most cooperation to the United States in administering the program, rather than excluding those whose governments provide the least cooperation. DHS is particularly interested in additional ways to promote cooperation by foreign governments in matters of security, particularly in connection with travel and immigration, such as the country's willingness to share passport information and criminal records of aliens who are seeking admission to, or are present in, the United States under this program.

Upon proper application by a prospective employer, a temporary labor certification is granted if the Secretary of Labor or the Governor of Guam (for employment on Guam) determines that the H-2B non-agricultural temporary worker will not displace U.S. workers and the H-2B employment will not adversely affect the wages and the working conditions of U.S. workers. Currently, if a petitioner receives a notice from the Secretary of Labor or the Governor of Guam that certification cannot be made, a petition containing countervailing evidence to overcome this lack of certification may be filed with USCIS. 8 CFR 214.2(h)(6)(iv)(D), (E), (h)(6)(v)(C), (D). In any case where USCIS decides that approval of the H-2B petition is warranted despite the issuance of a Non-Determination Notice by the Secretary of Labor or the Governor of Guam, the approval must be certified by the USCIS Administrative Appeals Office (AAO) pursuant to 8 CFR 103.4. 8 CFR 214.2(h)(9)(iii)(B)(2)(ii).

It is the view of DHS that, when the Secretary of Labor or the Governor of Guam decides that she cannot make such a labor certification determination, it would not be appropriate for USCIS to review that decision by adjudicating a petition that lacks an approved temporary labor certification. Thus, this rule proposes to eliminate USCIS's current authority to adjudicate H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification. Under this proposed rule, an H-2B petition may not be filed with USCIS unless the Secretary of Labor or the Governor of Guam has granted a temporary labor certification. Accordingly, this rule proposes to make conforming amendments to 8 CFR 214.2(h)(1)(ii)(D), (h)(6)(iii)(C), (h)(6)(iii)(E), (h)(6)(iv)(A), (h)(6)(iv)(D), (h)(6)(iv)(E), (h)(6)(v)(A), (h)(6)(v)(A)( 2 ), (h)(6)(v)(C), (h)(6)(v)(D), (h)(6)(vi)(A), (h)(6)(vi)(B), and (h)(9)(iii)(B)(2) to reflect elimination of this current practice.

At present, USCIS allows employers to file a Form I-129 with a start date that is later than what is stated on the approved temporary labor certification, as long as the requested employment period on the petition is within the validity period of the approved temporary labor certification. This rule proposes to preclude this practice, as the unintended consequences of this policy are that it unfairly benefits employers with longer seasonal or temporary employment windows, invalidates the labor market test certified by DOL in the approved application for labor certification, and can be easily exploited by certain employers to gain an advantage in obtaining H-2B visas from the limited pool of 66,000 available each fiscal year. Under this proposed rule, petitioners, with a limited exception discussed below, would not be able to request an employment start date on Form I-129 that is different than the date of employment need listed on the accompanying approved temporary labor certification. Proposed 8 CFR 214.2(h)(6)(iv)(D).

USCIS has determined that the current practice of allowing employers to file a Form I-129 with a start date that is later than what is stated on the temporary labor certification unfairly benefits employers with longer seasonal or temporary employment windows as they have the advantage of being able to file petitions before other employers with a shorter timeframe. An employer may, for example, submit a labor certification application requesting workers from January 1 to October 31; this labor certification could be filed as early as September 1 of the previous year, because the application for labor certification may be submitted to DOL as early as 120 days prior to the stated date of need. However, if the 33,000 cap for the first half of that fiscal year (i.e., October 1-March 31) is reached before the employer has an opportunity to file a petition with USCIS (note that the cap for the first half of FY08 was reached on September 27, 2007), the earliest time when this employer will be able to receive H-2B workers is April, when an additional new 33,000 H-2B visas become available. Upon receipt of the approved labor certification for the employment from January 1 to October 31, the employer may currently file a Form I-129 petition with USCIS indicating that it will need a workforce from April 1 to October 31 in order to receive the necessary H-2B visa numbers allocated for the second half of the fiscal year. However, submission of a petition with a start date later than the start date of stated need on the approved labor certification in such a circumstance, and thus potentially receiving workers for at least the latter part of the employer's period of need, may currently only be undertaken by employers with a lengthy, multiple-month need for temporary workers. Employers in industries whose need for workers arises only during a very brief seasonal period or for any shorter period of time during the spring or summer cannot take advantage of this because their period of need is too short to allow them the same flexibility in shifting employment start dates. While such employers with shorter periods of need must wait until later to apply for a labor certification, employers with longer periods of need, as in the example above, are able to get a head start in requesting H-2B visas from the second half of the fiscal year. This does not ensure a fair and equitable distribution of the H-2B visa numbers among all H-2B employers throughout the year.

Furthermore, an appropriate labor market test must be conducted prior to the determination by the Secretary of Labor as to whether there are any U.S. workers available and capable of performing the temporary services or labor and whether the H-2B employment will adversely affect the wages and working conditions of U.S. workers. According to DOL, the labor market test will be invalidated if the employer changes the employment start date after the temporary labor certification is granted (e.g., due to qualified U.S. worker unavailability on the start date provided on the labor certification application). USCIS agrees with DOL on this issue.

The H-2B classification is defined to include nonimmigrant foreign workers who perform non-agricultural temporary services or labor if United States workers who are capable of performing such services or labor cannot be found. INA sec. 101(a)(15)(H)(ii)(B), 8 U.S.C. 1101(a)(15)(H)(ii)(b). The effect of a grant of a labor certification is to certify that qualified workers in the United States are not available “at the time and place needed to perform the work” for which H-2B workers are being requested and that the H-2B employment will not adversely affect the wages and working conditions of similarly employed United States workers. See 20 CFR 655.3(b). As the availability of temporary U.S. workers could change over short periods of time, the result of the labor market test could be different if the employment start date is changed after a labor certification is approved. Therefore, the grant of the H-2B status based on a petition which contains a later employment start date than what was stated on the approved labor certification could have the practical effect of precluding otherwise available United States workers from filling the position in question, which is in violation of the statute.

Allowing employers to file a Form I-129 with a date that is later than what is stated on the temporary labor certification, as long as the employment period is within the validity period of the approved temporary labor certification, also can be easily exploited by employers whose period of need is actually shorter than the period stated in the labor certification application, but who state a longer need in order to move up the date on which they can file their H-2B petition. Given how quickly the H-2B cap for each half of the fiscal year has been reached in recent years (e.g., in FY 2008, the cap for the second half of the fiscal year was reached on January 2, 2008), the earlier an employer can file its petition the better are its chances of getting H-2B visas for its workers.

In order to ensure a fair and equitable distribution of the 33,000 H-2B visa numbers becoming available each half fiscal year, this rule proposes to generally preclude a change of the requested employment start date on a Form I-129 from the date of employment need listed on the accompanying temporary labor certification. See proposed 8 CFR 214.2(h)(6)(iv)(D). With the one limited exception stated below, if an employer has a reason to change the requested employment start date after a temporary labor certification was previously granted, it must obtain a new temporary labor certification with the new employment start date prior to filing a Form I-129 petition with USCIS. Id.

The exception to this prohibition on petitioners' requesting an employment start date on Form I-129 that is different than the date on the accompanying approved temporary labor certification would apply when an amended H-2B petition, accompanied by the previously approved temporary labor certification and a copy of the original petition approval notice, is filed at a later date due to the unavailability of the originally requested number of workers. The proposed rule would permit the amended H-2B petition securing the remaining number of workers that was originally approved in the labor certification to state an employment start date that is later than what is stated in the accompanying temporary labor certification. See Section L—Substitution of Beneficiaries and proposed 8 CFR 214.2(h)(6)(viii).

USCIS has found that certain labor recruiters and U.S. employers are charging potential H-2B workers job placement fees in order to obtain H-2B employment. Such workers are coming to the United States to fill positions that U.S. workers are unwilling or unable to fill and are frequently doing so in order to improve their own difficult economic circumstances at home. USCIS has learned that payment by these workers of job placement-related fees not only results in further economic hardship for them, but also, in some instances, has resulted in their effective indenture. In an effort to protect H-2B workers from such abuses, this rule proposes to provide USCIS with the authority to deny or revoke upon notice any H-2B petition if it determines that the petitioner knows or reasonably should know that the alien beneficiary has paid or has agreed to pay any fee or other form of compensation, whether directly or indirectly, to the petitioner or the petitioner's agent, or to any facilitator, recruiter, or similar employment service, in connection with obtaining the H-2B employment. See proposed 8 CFR 214.2(h)(6)(i)(B); see also 8 CFR 214.2(h)(11)(iii)(A)(5) (revocation on notice). To further ensure that an alien in such a situation has not improperly incurred any expenses or debt in connection with obtaining employment in the United States under the H-2B program, the rule also proposes that an H-2B petitioner be required to demonstrate, as a precondition to approval of any subsequent H-2B petition, that it has reimbursed the alien beneficiary in full for any such fees or other form of compensation (other than those for which the petitioner may be reimbursed, as described in proposed 8 CFR 214.2(h)(6)(i)(B)(3)). Those fees or other form of compensation also include those paid to the petitioner, an agent, facilitator, or similar employment service whether directly or indirectly, in connection with obtaining H-2B employment, whether or not such alien has opted to seek H-2B employment with another employer, as permitted under proposed 8 CFR 214.2(h)(6)(i)(B). For instance, the petitioner may submit a copy of the financial transaction record or a receipt signed by the beneficiary as evidence of reimbursement.

An H-2B employer will be subject to these provisions if it knows or reasonably should know that its H-2B employees have been charged a fee by anyone (other than those fees for which the petitioner may be reimbursed, as described in proposed 8 CFR 214.2(h)(6)(i)(B)(3)) related to their placement as an H-2B worker with the employer. For example, a recruiter advertises on the Internet or through other means to prospective H-2B employers that it can place temporary alien workers with such employers at no or minimal cost to the prospective employers. In such a case, if there is evidence that the prospective employer knew or reasonably should have known about the advertisement, it is reasonable to expect it to question the recruiter generally as to how it is able to provide such free services, and in particular, whether the alien workers it finds have been or will be charged any direct or indirect fee in connection with such placement. Failure to make such reasonable inquiries will not relieve the employer of its obligations under these provisions. Similarly, if an H-2B employer learns, directly or indirectly, that a prospective H-2B worker has been asked to pay a fee or other thing of value to a recruiter/facilitator or other downstream party in connection with his/her employment with the U.S. employer then the H-2B employer, in such a situation, will be deemed to be on notice that its prospective employees have been or may be asked to pay a job placement related fee by this recruiter/facilitator or other downstream party, and can be expected to take reasonable steps to ascertain whether this is in fact true.

USCIS believes that this proposal will help minimize immigration fraud and protect against other abuses that have occurred when such aliens have been required to pay such employment fees, including petition padding (i.e., the filing of requests for more workers than needed), visa selling, and human trafficking. While this proposal would provide necessary protections against the alien worker's indenture, this proposal would not preclude the payment of any finder's or similar fee by the prospective employer to a recruiter or similar service, provided that such payment is not assessed directly or indirectly against the alien worker. Further, this reimbursement requirement would not apply to the actual cost of transportation to the United States, or payment of any government-specified fees required of persons seeking to travel to the United States, such as those required by a foreign government for issuance of passports and by the U.S. Department of State for issuance of visas, provided that any such costs incurred be the lower of the fair market value or the actual cost of the service (unless the prospective employer has agreed with the alien to pay such fees and/or transportation costs). The prospective employer would be responsible, however, for the payment of any related indirect fees, attorneys' fees, travel agent fees, and fees for assistance to prepare visa application forms.

To provide protection to H-2B workers who are in the United States based upon an approved petition that is later revoked pursuant to proposed 8 CFR 214.2(h)(6)(i)(B), this rule proposes a thirty-day grace period during which time such workers may apply for an extension of stay, depart the United States, or find new employment. During the thirty-day period, such workers, if they do not otherwise violate the terms and conditions of their nonimmigrant admission in H-2B classification, would not be unlawfully present in the United States, but, instead, would be in an authorized period of stay. See INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). This proposed rule, therefore, would prevent such persons from accruing a period of “unlawful presence” that might otherwise subject such persons to the statutory bar on admissibility under that section of the INA.

Further, to minimize the costs to H-2B workers who are affected by the revocation of a petition pursuant to proposed 8 CFR 214.2(h)(6)(i)(B), this rule also proposes to require employers who know or reasonably should know the payment by the beneficiary of any such job placement or related fees (other than those for which the petitioner may be reimbursed, as described in 8 CFR 214.2(h)(6)(i)(B)(3)), to pay such workers' reasonable transportation expenses to return to their last place of foreign residence, and, as described above, to reimburse the alien for any fees or other compensation of which the employer knew or reasonably should have known (other than, in certain cases, transportation costs and any government-mandated passport, visa and inspection fees) paid in connection with obtaining H-2B employment with the petitioner. Proposed 8 CFR 214.2(h)(6)(i)(B).

USCIS recognizes that some H-2B petitioners, particularly those petitioning for the first time and without the benefit of counsel, may not appreciate the limitations on H-2B employment imposed by the regulations or by the representations in the H-2B petition and the accompanying application for temporary labor certification. This rule proposes to require H-2B petitioners to include with their petitions an attestation, certified as true and accurate by the petitioner and signed under penalty of perjury, that during the period of intended employment for which the petition is approved, the petitioner will not materially change the information provided on the Form I-129 and the temporary labor certification, including, but not limited to, the alien workers' duties, place of employment, nor the entities for which the duties will be performed. Proposed 8 CFR 214.2(h)(6)(i)(C). USCIS believes that this requirement will apprise petitioners of their responsibilities and obligations, and, at the same time, help prevent the employment of H-2B alien workers in a manner that conflicts with the representations upon which approval of the petition is based. In the event that a material change does occur in the terms and conditions of employment specified in the original petition, petitioners are currently obligated to file a new petition under 8 CFR 214.2(h)(2)(i)(E).

As an anti-fraud and worker protection measure to complement the proposed changes to 8 CFR 214.2(h)(6)(i)(B), USCIS is further proposing in 8 CFR 214.2(h)(6)(i)(C)(2) that the petitioning employer also include in its attestation a statement that it has not received, nor intends to receive, any fee, compensation, or any other form of remuneration from the workers it intends to hire or from any person, agency or other entity in connection with H-2B employment. The petitioner would also be required to attest to whether it has used a facilitator, recruiter, or any other similar employment service to locate foreign workers to fill the positions covered by the H-2B petition, and if so, to provide the names of such facilitators, recruiters, or placement services and whether it believes, to the best of its knowledge, that any fees were paid or asked of its H-2B workers by such third parties. Finally, the petitioner would be required to attest to whether USCIS has previously determined that the H-2B petitioner knew, or reasonably should have known that any fee, compensation, or other form of remuneration has been collected, directly or indirectly, in connection with the filing by the petitioner of any previous H-2B petition on behalf of an alien, and if so, whether the petitioner has reimbursed that alien in full for any such fees, compensation, or other remuneration (other than, in certain cases described above, certain government-mandated passport, visa and inspection fees and/or transportation costs).

USCIS is proposing to revise 8 CFR 214.2(h)(10)(ii) and 8 CFR 214.2(h)(11)(iii)(A)( 2 ) to clarify USCIS' authority to issue a notice of denial or revocation of a Form I-129 if USCIS determines that the statements on the Form I-129 petition or application for labor certification are inaccurate, fraudulent, or misrepresented a material fact.

USCIS also proposes to add 8 CFR 214.2(h)(6)(i)(E) to require petitioners to provide notification to DHS within 48 hours in the following instances: an H-2B worker fails to report to work within five days of the date of the employment start date on the H-2B petition or within five days of the start date established by his or her employer, whichever is later; the non-agricultural labor or services for which H-2B workers were hired is completed more than 30 days early; or an H-2B worker absconds from the worksite or is terminated prior to the completion of non-agricultural labor or services for which he or she was hired. This proposal would ensure that an approved H-2B petition filed by an employer is closed out when the basis for the alien's status terminates and that USCIS is made aware of the change in employment status. The rule also proposes that the petitioner notify DHS beginning on a date and in a manner specified via notice published in the Federal Register .

To enforce the notification provision, the rule proposes to require employers to retain evidence (e.g., a photocopy) of the notification for a one-year period. See proposed 8 CFR 214.2(h)(6)(i)(E). Additionally, the rule proposes to add a provision setting forth the circumstances in which an H-2B worker may be found to be an absconder, thus defining a term that would otherwise vary in interpretation from one employer to the next, possibly to the detriment of the alien worker. See proposed 8 CFR 214.2(h)(6)(i)(E). The definition employs the same five-day period used to trigger a notification requirement when the alien does not report to work at the beginning of the petition period.

Currently, the regulations governing the H-2A classification include a provision regarding the consequences to aliens for violating H-2A status. See 8 CFR 214.2(h)(5)(viii)(A). The regulations governing the H-2B classification do not contain such a provision. USCIS has determined that there is no reason for this disparity. In order to further the integrity of the H-2B program, DHS is proposing to add a new provision in the H-2B regulations at 8 CFR 214.2(h)(6)(ix) that would preclude a new grant of H-2B status where the alien worker violated the conditions of H-2B status, other than through no fault of his or her own, within the five years prior to adjudication of the new H-2B petition by USCIS.

The Secretary of Homeland Security is authorized to prescribe conditions for the admission of nonimmigrant aliens under section 214 of the INA. Section 235 of the INA provides for the inspection of applicants for admission. Pursuant to 8 CFR 235.1(h)(1), nonimmigrant aliens who are admitted to the United States, unless otherwise exempt, are issued Form I-94, “Arrival/Departure Record,” as evidence of the terms of admission. Once admitted into the United States, nonimmigrant aliens are required to comply with all the conditions of their stay, depart the United States before the expiration of the period of authorized stay, and surrender the departure portion of the Form I-94 upon departure from the United States. Section 215 of the INA provides the authority for departure control for any person departing from the United States. Additionally, 8 CFR part 215 provides the regulations for controls of aliens departing from the United States. Specifically, 8 CFR 215.2(a) allows for DHS, at its discretion, to require any alien departing from the United States to be examined under oath and to submit for official inspection all documents in the alien's possession.

Available statistics indicate that a significant number of nonimmigrant aliens either do not turn in their Form I-94 upon departure or overstay his or her authorized period of stay. DHS intends to strengthen its departure control recordkeeping system. On August 10, 2007, the Administration announced that it would establish a new land-border exit system for guest workers, starting on a pilot basis.

In order to ensure that temporary agricultural workers depart the United States within the authorized period, on February 13, 2008, DHS published a notice of proposed rulemaking to amend its regulations regarding the H-2A nonimmigrant classification, in which it proposed to institute a temporary worker visa exit pilot program and to require certain H-2A temporary agricultural workers to participate in this program. 73 FR 8230. Under the proposed program, an H-2A alien admitted at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographic and/or biometric information upon departure at the conclusion of their authorized period of stay.

This rule proposes to expand this temporary worker visa exit pilot program to the H-2B classification by requiring an H-2B alien admitted at a port of entry participating in the program to depart through a port of entry participating in the program and to present designated biographic and/or biometric information upon departure at the conclusion of the authorized period of stay. CBP would publish a Notice in the Federal Register designating which temporary workers must participate in the program, which ports of entry are participating in the program, which biographic and/or biometric information would be required, and the format for submission of that information by the departing designated temporary workers. The pilot program exit system would ensure that the designated temporary workers depart when their period of authorized stay expires and would provide a foundation for the comprehensive land border exit system for guest workers proposed by the Administration in August 2007. DHS requests comments on the establishment of the proposed pilot program.

DHS previously conducted exit pilot programs at selected air and sea ports of entry through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program. See 69 FR 46556. Those pilots began in August 2004 and concluded in May 2007. US-VISIT also conducted a limited pilot program at selected land borders to test radio frequency technology. See 70 FR 44934. That pilot did not collect information from aliens departing the United States.

The pilot program exit system proposed under this rule will utilize any applicable lessons learned from the US-VISIT pilot programs. DHS will continue to coordinate these screening programs to ensure both security and efficiency of the programs.

Under current regulations the period of a petitioner's need for H-2B workers “must be a year or less although there may be extraordinary circumstances where the temporary services or labor might last longer than one year.” 8 CFR 214.2(h)(6)(ii)(B). USCIS has determined that the general one-year limit contained in the current definition of a petitioner's temporary need for the services or labor performed by an H-2B alien, coupled with the “extraordinary circumstances” restriction on periods of need lasting longer than a year, is unnecessarily limiting on the employment opportunities that may otherwise qualify for H-2B classification. See 8 CFR 214.2(h)(6)(ii)(B). This rule therefore proposes to amend the current definition of “temporary services or labor.” Under the proposed rule, a job would be defined to be temporary where the employer needs a worker to fill the job for a limited period of time. The term “limited period of time” is in turn defined as a period of need that will end in the near, definable future. As under the current regulations, USCIS would generally consider a period of temporary need to be limited to one year or less, but the proposed rule eliminates the “extraordinary circumstances” restriction on periods longer than a year and explicitly provides that such a period could last up to three years.

USCIS is proposing this change because there are some employers who may need temporary workers for a specific project, such as the construction of a specific building, structure (e.g., bridge, power plant) or other development, which will have a definable end point but may require more than one year to complete. Under this proposal, an employer's need for the duties to be performed by H-2B workers can be considered temporary if it is a one-time occurrence and does not exceed three years. An employer with a multiple-year need is, however, required to retest the labor market annually and obtain a temporary labor certification annually. This contrasts with the nature of temporary work in the agricultural sector performed under the H-2A visa program, which generally is seasonal. USCIS believes that a more flexible rule that generally limits temporary work to one year but explicitly allows it to last up to three years better comports with the nature of temporary work in the H-2B context but is not at this time necessary in the H-2A context.

This rule also proposes to make a conforming amendment to 8 CFR 214.2(h)(9)(iii)(B)( 1 ).

An alien's total period of stay in H-2B nonimmigrant status may not exceed three years. 8 CFR 214.2(h)(15)(ii)(C). In H-2A nonimmigrant status, there are certain periods of time spent outside the United States that are deemed to “stop the clock” towards the accrual of the three-year limit. 8 CFR 214.2(h)(5)(viii)(C). USCIS has determined to apply the same standard to H-2B nonimmigrant status. This will also clarify what constitutes continuous presence in H-2B nonimmigrant status. See proposed 8 CFR 214.2(h)(13)(i)(B) and (h)(13)(v).

USCIS understands that there are instances when an employer is not successful in finding and/or bringing from abroad the intended number of workers, as approved on the temporary labor certification and the Form I-129. In a continued and subsequent effort to fill vacant positions, an employer may be able to find workers it could hire who are currently legally in the United States. USCIS' current regulations regarding the substitution of H-2B beneficiaries do not provide a process for an employer to substitute beneficiaries with aliens who are currently in the United States. 8 CFR 214.2(h)(2)(iv). This rule proposes to re-designate this paragraph as paragraph (h)(6)(viii) and provides a clarified process based on possible situations that an H-2B employer may encounter. See proposed 8 CFR 214.2(h)(6)(viii).

Section 214(c)(14)(A)(i) of the INA provides DHS with the authority to impose certain administrative remedies (including civil monetary penalties) as it deems appropriate if DHS finds, after notice and an opportunity for a hearing, a substantial failure to meet any of the conditions of the H-2B petition or a willful misrepresentation of a material fact in such petition. Section 214(c)(14)(A)(ii) of the INA, in turn, provides DHS with the authority to deny petitions filed with respect to an offending employer under section 204 or 214(c)(1) of the INA during a period of at least one year, but not more than five years, if DHS finds, after notice and an opportunity for a hearing, a substantial failure to meet any of the conditions of the H-2B petition or a willful misrepresentation of a material fact in such petition. Under this provision, petitions for workers in the H (except for H-1B1), L, O and P-1 nonimmigrant visa classifications may be barred. See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1).

DHS interprets section 214(c)(14)(B) of the INA, in conjunction with 214(c)(14)(A) of the INA, to permit DHS to delegate to DOL the authority to make such a finding and impose the administrative remedies authorized by section 214(c)(14)(i) of the INA. DHS is currently in discussions with DOL concerning whether to delegate authority to DOL to establish an enforcement process to investigate employers' compliance with H-2B requirements, including new requirements in proposed 8 CFR 214.2(h)(6)(i)(B) and (C), and to seek remedies for violations disclosed by any resulting investigations. This proposed rule describes potential immigrant and nonimmigrant petition debarment procedures USCIS could institute in the event that DHS and DOL reach a mutually agreeable delegation of enforcement authority from DHS to DOL. See proposed 8 CFR 204.5(o) and 8 CFR 214.1(k).

USCIS seeks comment on other means to encourage employer compliance with the terms and conditions of petitions to DHS as well as filings with other governmental agencies.

USCIS is proposing to amend 8 CFR 214.2(h)(6)(iii)(B), 214.2(h)(6)(v)(E)(2)(iii), and 214.2(h)(6)(vii) to correct typographical errors. USCIS is also proposing to amend 8 CFR 214.2(h)(8)(ii)(A) to codify the current numerical counting procedures for the H-2B classification.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule has been designated as significant under Executive Order 12866. Thus, under section 6(a)(3)(C) of the Executive Order, USCIS is required to prepare an assessment of the benefits and costs anticipated to occur as a result of this regulatory action. A complete analysis of the costs and benefits of this rule is available in the docket for this rule at www.regulations.gov in rulemaking Docket No. USCIS-2007-0058. The impacts of the changes proposed in this rule are summarized as follows:

• Filing volumes. The number of petitions filed by H-2B employers is expected to increase, but the annual volume of petitions processed will not change because the maximum number of available visas will not change, absent action from Congress. Therefore, the increased volume will result in more petitions being returned without depositing their fee payment or reviewing the petition.

• Decreased processing times. The average USCIS processing time for an H-2B petition of around 60 days will decrease as a result of petitioners not being required to name the individual alien on initial H-2B petitions. USCIS will not have to perform an Interagency Border Inspection System (IBIS) name check, removing the largest source of delays in the processing of H-2B petitions.

• Increased flexibility for longer-term projects . By eliminating the “extraordinary circumstances” restriction on periods longer than a year and explicitly providing that such a period could last up to three years, this proposed rule would benefit employers who need workers for a specific project that will take longer than one year to complete.

• No effect on labor pool . Because of the statutory maximum on the annual number of H-2B visas available, this rule will result in no increase in the availability of temporary seasonal workers. There may be some slight benefit from helping employers fill jobs and find workers more efficiently, but businesses will still be constrained by a limited labor supply.

• More attractive program . The administrative improvements proposed in this rule are intended to make employers more likely to participate in the program. This may cause some employers who currently hire seasonal workers who are not properly authorized to seek to replace those workers with lawful workers.

• Better control and monitoring of employees . By requiring an employer to notify USCIS quickly after the employer terminates an alien's employment, immigration authorities will have better information regarding the presence in the U.S. of an alien without legal immigration status to determine his or her whereabouts for enforcement measures.

• No changes in fee collections . Only those H-2B petitions received before the maximum annual number of H-2B visas is reached are adjudicated and the fee check deposited. Petitions not received before the maximum annual number is reached are rejected. Because the total number of H-2B visas available per year will not increase and the total number of workers requested already greatly exceeds the number of H-2B visas available, fees will not increase because there will be no increase in Form I-129 filings that are processed.

• Increase in petitions filed . The administrative improvements proposed by this rule are expected to result in more petitions for H-2B workers being submitted to USCIS. Therefore, the aggregate burden imposed on the public may increase in relation to the additional respondents who will file a Form I-129 as a result of this rule's proposed changes. However, since the total number of workers requested already greatly exceeds the number of H-2B visas available, more petitions will not be processed and/or approved.

• Repatriation provision effects will be slight . This rule proposes to prohibit approval of an H-2B petition for a worker from a country that consistently denies or unreasonably delays repatriation of its citizen, subjects, nationals, or residents. The current impact of this proposed change is expected to be negligible, since very few H-2B workers are from countries DHS believes may see an impact from this provision. In addition, since the total number of workers requested exceeds the number of H-2B visas available, such impacts as may occur would represent transfers from one country's workers to another.

• Costs of exit registration requirement is low . Under the proposed rule, certain aliens admitted on H-2B visas must comply with the DHS Biometric Exit Pilot. An alien admitted at a port of entry participating in the program must depart through a port of entry participating in the program and present designated biographic and or biometric information upon departure at the conclusion of their authorized period of stay. The annual undiscounted costs of the time for H-2B employees to exit as required under this rule is estimated to be around $136,500.

• Restrictions on recruitment or placement fees—added compliance costs to petitioning firms . Petitioners must demonstrate that they have reimbursed alien beneficiaries in full for any such fees or other form of compensation (other than those for which the petitioners may be reimbursed) or risk denial of their petition. Most foreign worker recruiters charge each H-2B employee about $500.00 (inclusive of visa fees and some other fees) and USCIS believes most H-2B workers use a recruiter, or adviser of some sort in their home country. Some companies provide discounts to repeat customers for their placement fee and offer referral fees to workers who refer their friends and family to the program. Most of the recruiting companies refund or do not collect fees if the applicant's visa is denied at the embassy. An employer, on the other hand, pays from $500 to $4,000, per H-2B employee, including expenses, depending on the complexity of the situation, the home country, and the skills needed for the position. By barring petitions when the alien has reimbursed the petitioner for recruitment or job placement fees or requiring a showing in a future petition that the petitioner has reimbursed the alien for such fees, this rule will effectively ban the payment of fees by the alien beneficiary above the visa fees, travel expenses and other normal expenses. Since the majority of H-2B employees are estimated to pay such fees, and such practices are expected to continue, this will result in a transfer of those costs to employers. If the entire $500 fee is considered a recruitment or placement fee, the estimated costs of this requirement is about $4,500 per employer, based on an average of 9 employees sponsored by each participating employer, or about $33 million total for all 66,000 H-2B employees per year.

• Added transportation cost negligible . The impact of requiring employers to pay workers' transportation expenses to return to their last place of foreign residence when there is a determination that they knew or reasonably should have known about the payment by the beneficiary of any job placement or related fees is expected to be negligible, because employers would be expected to reimburse the alien before being subjected to this sanction.

• Ramifications for firms that collect a fee from the employee . This rule will have an impact on employee recruiters, although the exact effects are not certain. USCIS has no data on the number of firms that recruit workers in foreign countries to come to the United States as H-2B employees, but the majority of H-2B workers are believed to use such a service. The proposal to reject petitions where there have been such fees charged the employee could have substantial ramifications for these firms, because their collecting a fee from the employee will put the employee at risk of being determined ineligible for the benefit for which they are assisting the employee in obtaining.

• Reduced government burden and costs . This rule is expected to reduce costs for the government by terminating the review of petitions approved based on countervailing evidence and the related mandatory H-2B reviews. Employees handling these reviews will be able to focus on eliminating application and petition backlogs for other benefits.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires Federal agencies to conduct a regulatory flexibility analysis which describes the impact of the proposed rule on small entities whenever an agency is publishing a notice of proposed rulemaking such as this one.

The four industries that are dominant users of the H-2B program are the landscaping, hotel, construction, and forestry industries, according to Department of Labor data on the participants in the employment-based visa program. The Small Business Administration (SBA) Small Business Size Regulations at 13 CFR part 121 provide standards for how large a for-profit concern can be and still qualify as a small business for Federal Government programs, based on the firm's average annual receipts and or the average employment of a firm. The SBA standards indicate that firms in landscaping, forestry, and hotels with average gross annual sales below $6.5 million are small businesses. For building contractors, the small business size guideline is maximum sales of $31 million and 500 employees.

Based on the above definitions, the U.S. Census Bureau's 2002 Economic Census reported that approximately 99.9 percent of employers in the construction industry, 95 percent in the forestry and landscaping industry, and 90.8 percent of those in the accommodation and food services industry were small businesses. 2 If the proportion of small employers participating in the H-2B program is similar to the overall market, these figures imply that, of the 15,000 Form I-129 filings per year for H-2B employees, at least 14,000 will be filed by small businesses looking to hire a seasonal worker. Therefore, this rule applies mainly to small businesses.

The proposed rule adds a new “reporting” or “recordkeeping” requirement within the meaning of the Paperwork Reduction Act. The rule does not require professional skills for the preparation of “reports” or “records” under that Act.

The mechanism and parameters of the absconder reporting requirement are proposed in this rule at 8 CFR 214.2(h)(6)(i)(E)(1). The actual reporting requirements will be imposed when the Federal Register notice instructing approved petitioners on how, where, and what to report in accordance with that section is published. The Paperwork Reduction Act requirements will be complied with along with approval of that notice at that time after the remainder of the requirements of this rule have taken effect. DHS will obtain OMB approval and a new OMB control number of the requirements established at that time.

Reporting requirements will under 8 CFR 214.2(h)(6)(i)(E)(1) of this rule be provided via notice published in the Federal Register . This rule also adds recordkeeping requirements, because the petitioner will also be required to retain evidence of notification for a one-year period beginning from the date of the notification. DHS has no basis for estimating the cost of this new requirement on H-2B employers at this time and requests further comment on the actual costs or expenditures, if any, of the impact on firms as a result of this new reporting and recordkeeping requirement and how that impact may differ or vary for small entities.

DHS is unaware of any duplicative, overlapping, or conflicting federal rules. However, there are areas of interplay and dependency between this rule and those of the U.S. Department of Labor (DOL). For example, a proposed rule was recently published by DOL proposing changes that comport with this rule and vice versa. 73 FR 29942 (May 22, 2008). As noted below, DHS seeks comments and information about duplicative rules, as well as any other state, local, or industry rules or policies that impose similar requirements as those in this proposed rule. Comments pointing out provisions of this rule that duplicate, contradict, or are better suited for inclusion in the regulations of another Federal agency are welcome.

Alternatives considered . The proposal in this rule that provides that petitions where a recruitment or finder's fee paid by an employee will be denied, may have an impact on a substantial number of small entities engaged in the foreign worker recruiting business. As a result, to regulate the practice of charging the alien beneficiary a placement or finder's fee in the home country, DHS considered the following alternatives.

Please provide comment on any or all of the provisions in the proposed rule with regard to:

a. The impact of the provision(s) (including any benefits and costs), if any; and

b. What alternatives, if any, DHS should consider, as well as the costs and benefits of those alternatives, paying specific attention to the effect of the rule on small entities in light of the above analysis. In particular, please provide the above information with regard to the following sections of the proposed rule:

i. The new reporting requirements on H-2B employers, including the time frame for reporting in 8 CFR 214.2(h)(6)(i)(E).

ii. The requirement for petitioners to reimburse H-2B workers under 8 CFR 214.2(h)(6)(i)(B).

iii. Any other requirement not mentioned above.

c. Costs to “implement and comply” with the rule including expenditures of time and money for any employee training; attorney, computer programmer, or other professional time; preparing relevant materials; processing materials, including, materials or requests for access to information; and recordkeeping.

Please describe ways in which the rule could be modified to reduce any costs or burdens for small entities consistent with the Immigration and Nationality Act's requirements.

Please describe whether and how technological developments could reduce the costs of implementing and complying with the rule for small entities or other operators.

Please provide any information quantifying the economic benefits of:

a. Reducing delays in the petition, application, and approval process.

b. Reducing the time required for an H-2B worker to be out of the country.

c. Encouraging employers that currently hire temporary nonagricultural workers who are not properly authorized to work in the United States to replace those workers with legal workers.

d. Minimizing immigration fraud and protecting against abuses that occur when aliens are required to pay employment fees.

Please identify all relevant federal, state or local rules that may duplicate, overlap or conflict with the proposed rule. In addition, please identify any industry rules or policies that already require compliance with the requirements of the DHS proposed rule.

CBP is also seeking comments through this rule with respect to a pilot program that would require that aliens admitted on certain temporary worker visas at a port of entry must depart through a port of entry participating in the program. Although there may be costs associated with participation in this program, the aliens impacted by this portion of the rule are not considered “small entities,” as that term is defined in 5 U.S.C. 601(6). Since the regulation will require the aliens to comply with the pilot program, rather than placing a requirement on the employers, the employers are not directly impacted by this provision of the proposed rule. Employers, including small entities, are free to offer assistance to their H-2B workers in complying with this requirement if they choose to do so. However, the employer's assumption of any costs inherent with complying with this requirement on behalf of their workers is voluntary and, therefore, not subject to the Regulatory Flexibility Act.

This rule will not have substantial direct effects 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rule does not impose any new reporting or record-keeping requirements. This rule requires that a petitioner submit Form I-129, seeking to classify an alien as an H-2B nonimmigrant. This form has been previously approved for use by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. The OMB control number for this collection is 1615-0009.

However, this rule requires that certain H-2B workers departing the United States participate in a temporary worker visa exit pilot program. This requirement will add to the number of respondents approved by OMB for the information collections in OMB control number 1600-0006, U.S. Visitor Immigrant Status and Indicator Technology (US-VISIT). When this rule is final, DHS will submit a request for a non-substantive change to OMB to account for this requirement's added burden.

Accordingly, chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

I. Purpose of the Proposed Rule

The H-2 temporary worker program has existed without substantial modification since 1952. The Immigration Reform and Control Act of 1986 divided H-2 workers into two categories: Temporary workers to perform agricultural labor or services (H-2A), and all other temporary workers (H-2B). In 1990, Congress attached a limitation on the number of H-2B workers, but otherwise the program has not significantly changed to accommodate employers' needs or to offer worker protections. After consulting with DOL and the Department of State, and reviewing the definitions and procedures used to regulate the H-2B nonagricultural temporary worker program, USCIS determined that the H-2B process should be modified to reduce unnecessary burdens that hinder petitioning employers' ability to effectively use this visa category. The proposed rule was published on January 27, 2005, with its intent being to increase efficiency in the program by removing existing regulatory barriers. 70 FR 3984.

The most significant proposed change was a migration to a one-stop attestation-based process whereby most U.S. employers seeking H-2B temporary workers would only be required to file one application, the Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The proposal would have reduced the paper-based application process by requiring that most Form I-129 petitions be submitted to USCIS electronically through e-filing. The proposal would also have required e-filed petitions to be filed not more than 60 days in advance of the employment need. The proposed rule also would have precluded agents from filing H-2B petitions on behalf of the actual H-2B employer. Finally, the proposed rule included additional changes to ensure the integrity of the program through enforcement mechanisms.

USCIS received 125 comments on the proposed rule during the 60-day comment period. The majority of the commenters were opposed to many changes proposed in the rule. The comments are summarized as follows:

• There were a significant number of negative comments regarding the proposal to create a one-stop attestation-based process. Some commenters stated that the existing labor certification process should remain with DOL because DOL, not USCIS, is directly charged with the protection of U.S. workers. Some also expressed concern that this change would lead to widespread fraud and misrepresentation.

A considerable number of commenters were in opposition to the proposed change requiring that petitioners e-file a petition within 60 days in advance of the employment need. Some raised concern that many employers are not necessarily well-versed in the access and use of the Internet.

• A significant number of comments were opposed to the proposal to eliminate agents. Many commenters stressed that agents perform a vital function in the H-2B filing process on behalf of the employers who are not conversant with the applicable laws and regulations related to the H-2B program.

• The majority of the comments stressed that the proposed changes would result in decreased protections for U.S. workers and the likely proliferation of fraud within the program.

Based upon a review of the rulemaking record as a whole, DHS has decided to withdraw the January 27, 2005, proposed rule and terminate the associated proposed rulemaking action. DHS, therefore, will not publish specific responses to each comment.

For the reasons described in this document, DHS is withdrawing the proposed rule published on January 27, 2005 (FR Doc. 05-1240, 70 FR 3984).

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. Petitioners may use the same procedure to request changes involving existing viticultural areas. 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.

Gallo Family Vineyards submitted a petition proposing a 14,044-acre expansion of the established Russian River Valley viticultural area (27 CFR 9.66). The proposed expansion would increase the established viticultural area's acreage by approximately 9 percent, to 169,028 acres. The petitioner explains that approximately 550 acres of the proposed expansion area were planted to grapes at the time of this petition. The petitioner's Two Rock Ranch Vineyard, with 350 acres planted to grapes, lies near the southern end of the proposed expansion area.

The Russian River Valley viticultural area is located approximately 50 miles north of San Francisco in central Sonoma County, California. The viticultural area was originally established by Treasury Decision (T.D.) ATF-159, published in the Federal Register (48 FR 48813) on October 21, 1983. It was expanded by 767 acres in T.D. TTB-7, published in the Federal Register (68 FR 67370) on December 2, 2003, and again by 30,200 acres in T.D. TTB-32, published in the Federal Register (70 FR 53299) on September 8, 2005. Although T.D. TTB-32 states that after the 2005 expansion the viticultural area covered 126,600 acres, the current petition provides information updating the present size of the viticultural area to a total of 154,984 acres.

The current Russian River Valley viticultural area, with the exception of its southern tip, lies within the Northern Sonoma viticultural area (27 CFR 9.70). The Northern Sonoma viticultural area, in turn, lies largely within the Sonoma Coast viticultural area (27 CFR 9.116). The Northern Sonoma and Sonoma Coast viticultural areas are both entirely within the North Coast viticultural area (27 CFR 9.30).

The current Russian River Valley viticultural area also entirely encompasses two smaller viticultural areas—in its northeastern corner, the Chalk Hill viticultural area (27 CFR 9.52), and in the southwest, the Green Valley of Russian River Valley viticultural area (27 CFR 9.57).

According to the petition, the proposed expansion would extend the current viticultural area boundary south and east, encompassing land just west of the cities of Rohnert Park and Cotati. The proposed expansion area lies within the Sonoma Coast and North Coast viticultural areas but not within the Northern Sonoma viticultural area. According to the petition, the proposed expansion area lies almost entirely within the Russian River Valley watershed, is historically part of the Russian River Valley, and shares all the significant distinguishing features of the Russian River Valley viticultural area.

The petitioner states that the proposed expansion area is widely recognized as part of the Russian River watershed, a key criterion cited in past rulemaking documents regarding the existing viticultural area. T.D. ATF-159 states that the Russian River Valley viticultural area “includes those areas through which flow the Russian River or some of its tributaries * * *.” Moreover, the petitioner contends that before the establishment of the current viticultural area boundary, the proposed expansion area was commonly considered part of the Russian River Valley.

The petitioner includes several pieces of evidence showing the expansion area's inclusion in the Russian River watershed. A submitted map shows that almost all the proposed expansion area lies within the Russian River watershed (see “The California Interagency Watershed Map of 1999,” published by the California Resources Agency, updated 2004). The petitioner notes that drainage is through the Laguna de Santa Rosa waterway beginning near the east side of the proposed expansion area and flowing west and north through the current viticultural area. Thus, the waterway provides a common connection between the two areas.

The petitioner includes an informational brochure published by the Russian River Watershed Association (RRWA), an association of local governments and districts that coordinates regional programs to protect or improve the quality of the Russian River watershed. A map in the brochure shows that the watershed comprises both the current viticultural area and the area covered by the proposed expansion.

The petitioner submits a letter in which the RRWA asks the California Department of Transportation to place a sign marking the southern boundary of the Russian River watershed at a point on northbound Highway 101 near the City of Cotati in Sonoma County, California. This point is on the southeastern boundary of the proposed expansion area. The petitioner notes that the State has installed the requested sign and a sign at another point on the southern boundary of the proposed expansion area.

Also submitted with the petition is 2002 water assessment data published by the U.S. Environmental Protection Agency. This data includes the expansion area in its assessment of the Russian River watershed. Finally, the petitioner includes a Russian River Valley area tourism map that encompasses the proposed expansion area (see “Russian River Map,” ( http://russianrivertravel.com/ )).

Several documents relating to the agricultural and economic history of Sonoma County were also submitted by the petitioner. The petitioner states that they show that the proposed expansion area and the current viticultural area share a history of grape growing. For example, an 1893 survey compares the yields of individual grape growers in the established viticultural area with those of growers in the proposed expansion area (see “History of the Sonoma Viticultural District,” by Ernest P. Peninou, Nomis Press, 1998). The petitioner asserts that this document clearly shows that growers in the two areas grew similar grape varieties under similar growing conditions with similar yields.

A letter from Robert Theiller submitted with the petition describes the family-owned Xavier Theiller Winery. The winery, now defunct, operated in the proposed expansion area from 1904 to 1938. According to Mr. Theiller, it crushed grapes from both the area encompassed by the current Russian River Valley viticultural area and the area covered by the proposed expansion. The letter specifically states that “* * * people involved in grape growing and other agriculture in the area of the winery knew that [the proposed expansion area] was part of the Russian River Valley.”

The petition also includes a letter from wine historian William F. Heintz. Mr. Heintz is the author of “Wine and Viticulture History of the Region Known as the Russian River Appellation” (Russian River Valley Winegrowers, 1999). In his letter, Mr. Heintz writes:

According to the petitioner, the 2005 expansion created an artificial line for the southeast boundary. Proceeding south down the U.S. 101 corridor, it abruptly turns due west at Todd Road. Consequently, on a map, the Russian River Valley viticultural area appears to have had a “bite” taken out of its southeastern corner despite the fact that it and the proposed expansion area share common features of climate, soil, and watershed.

The proposed expansion would change the southeastern boundary of the current Russian River Valley viticultural area. At a point where the current southern boundary now abruptly turns north, the proposed new boundary line would generally continue to follow the defining ridge on the southern flank of the Russian River watershed. It would turn north at U.S. 101, eventually meeting the southeast corner of the existing boundary, adding an area almost entirely within the Russian River watershed.

Past rulemakings regarding the Russian River Valley viticultural area have stated that coastal fog greatly affects the area's climate. T.D. TTB-32 at 70 FR 53298 states, for example, that “Fog is the single most unifying and significant feature of the previously established Russian River Valley viticultural area.” The petitioner states that the proposed expansion area lies directly in the path of the fog that moves from the ocean into southern and central Sonoma County; thus, the same fog influences both the proposed expansion area and the current viticultural area. Consequently, there is no “fog line” dividing the current viticultural area and the proposed expansion area, according to the petitioner.

The petitioner provides a report showing the effect of the fog on the climate of the current viticultural area and proposed expansion area (see “Sonoma County Climatic Zones,” Paul Vossen, University of California Cooperative Extension Service, Sonoma County, 1986 ( http://cesonoma.ucdavis.edu/ )). The report describes the fog as passing through the Petaluma Gap and into the expansion area, as follows:

Additionally, the petitioner provides an online article delineating the presence of fog in the proposed expansion area (“Fog Noir,” by Rod Smith, September/October 2005 at http://www.privateclubs.com/Archives/2005-sept-oct/wine_fog-noir.htm . The article describes satellite images of fog moving through the Russian River Valley, as follows:

According to the petitioner, the proposed expansion area also has the same “coastal cool” climate as the current Russian River Valley viticultural area. T.D. ATF-159, T.D. TTB-7, and T.D. TTB-32 refer to the Winkler degree-day system, which classifies climatic regions for grape growing. In the Winkler system, heat accumulation is measured during the typical grape-growing season from April to October. One degree day accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, the minimum temperature required for grapevine growth (see “General Viticulture,” Albert J. Winkler, University of California Press, 1974). As noted in T.D. ATF-159, the Russian River Valley viticultural area is termed “coastal cool” and has an annual range of 2,000 to 2,800 degree days.

The petitioner concedes that the “Sonoma County Climate Zones” report cited above would place most of the proposed expansion area and part of the 2005 expansion area within the “marine” zone, instead of the warmer coastal cool zone. However, the petitioner argues that at the time of the 2005 expansion, TTB recognized that more current information had superseded the information in the 1986 report. Further, the petitioner argues that climate information included in the petition and presented below shows that the proposed expansion area actually has a coastal cool climate.

Using the Winkler system, the petitioner provides a table that includes a complete degree day data set for the April through October growing season at seven vineyards, including the petitioner's Two Rock Ranch Vineyard in the southern part of the proposed expansion area. The table is reproduced below.

The petitioner states that the table shows that all seven vineyards, including the Two Rock Ranch in the proposed expansion area, fall within the coastal cool climate range of 2,000 to 2,800 annual degree days. The petitioner notes the consistency of the degree day data for the 1983 establishment of the viticultural area, the 2005 expansion, and the current proposed expansion. The petitioner states that the degree day data in the table shows that the proposed expansion area has the same climate as the current Russian River Valley viticultural area. Further, the petitioner provides a raster map showing that annual average degree days in the proposed expansion area are within the same range as much of the existing viticultural area (see “Growing Degree Days” for Sonoma County (1951-80 average), published by the Spatial Climate Analysis Service, Oregon State University ( http://www.ocs.oregonstate.edu/index.html )).

The petitioner notes that the annual average number of hours between 70 and 90 degrees Fahrenheit during the April through October growing season for 1996-98 at the Two Rock Ranch Vineyard was 940 hours. Based on the “Sonoma County Climatic Zones” map, this average lies within the 800- to 1100-hour range that characterizes the coastal cool zone. The marine zone has fewer than 800 hours between 70 and 90 degrees Fahrenheit during the growing season.

The petitioner submits a report, written at the request of the petitioner, that includes a detailed analysis of the climate of the proposed expansion area. The petitioner requested expert commentary on the proposed expansion area and states that the report's author, Patrick L. Shabram, geographic consultant, has extensive experience in Sonoma County viticulture.

Mr. Shabram disputes the idea that the proposed expansion area is in a marine climate zone. Mr. Shabram cites three main factors in support of a determination that the climate zone of the proposed expansion area is not marine. First, successful viticulture would not be possible in a true marine zone because of insufficient solar radiation. Second, the proposed expansion area is well inland as compared to the rest of the marine zone; climatic conditions in the proposed expansion area would not be characteristic of a marine zone. Finally, Mr. Shabram states that the petitioner's climate data (summarized above) “* * * clearly demonstrates that the area should be classified as `Coastal Cool,' rather than the Marine climate type.”

Mr. Shabram provided the petitioner with a map that depicts all the proposed expansion area as belonging to the coastal cool zone (see “Revised Sonoma County Climatic Zones of the Russian River Valley Area,” by Patrick L. Shabram, 2007, based on “Sonoma County Climatic Zones” and “Revised Coastal Cool/Marine Climate Zones Boundary,” by Patrick L. Shabram).

According to the petitioner, the southernmost portion of the proposed expansion area is on the “Merced Hills” of the Wilson Grove formation. These are gently rolling hills dominantly on 5 to 30 percent slopes. The current Russian River Valley viticultural area does not encompass these hills; the proposed expansion area includes a portion of them.

The northern portion of the proposed expansion area comprises the essentially flat Santa Rosa Plain. The plain is consistent with the portion of the current Russian River Valley viticultural area that wraps around both the west and north sides of the proposed expansion. Elevations in the proposed expansion area range from 715 feet down to 75 feet above sea level. They are similar to those in adjoining areas of the current Russian River Valley viticultural area.

The petitioner discusses the similarities between the soils of the proposed expansion area and those of the current viticultural area based on a soil association map (see “Soil Survey of Sonoma County, California,” online, issued by the U.S. Department of Agriculture, Natural Resources Conservation Service ( http://websoilsurvey.nrcs.usda.gov/app/ )). The soils on the Merced Hills included in the proposed expansion area formed mainly in sandstone rocks of the underlying Wilson Grove formation. This formation is characterized by low lying, rolling hills beginning just south of the Russian River near Forestville, arching southeast through Sebastopol, and ending at Penngrove. It formed 3 to 5 million years ago under a shallow sea. According to the petitioner, the soils underlain by this formation are well suited to growing grapes in vineyards.

The petitioner provides the following quotation discussing the suitability of the soils to growing grapes in the proposed expansion area:

The petitioner notes that the Wilson Grove formation underlies the current Russian River Valley viticultural area, but the current southeastern border cuts north to south through the formation, midway between Sebastopol and Cotati. However, the soil associations on either side of the southeastern border of the current Russian River Valley viticultural area are identical. The Goldridge-Cotati-Sebastopol soil association is nearly continuous throughout the formation. The petitioner reports that areas of Sebastopol sandy loam are in the Laguna Ranch Vineyard just north of the town of Sebastopol (in the current viticultural area) and also in the Two Rock Ranch Vineyard in the proposed expansion area, just west of the town of Cotati.

The petitioner states that the Clear Lake-Reyes association is in the portion of the proposed expansion area north of the Merced Hills. The soils in this association are poorly drained, nearly level to gently sloping clays and clay loams in basins. They are in the southeast portion of the Santa Rosa plain and also in pockets further north, almost directly west of the city of Santa Rosa. The Huichica-Wright-Zamora association is further north in the proposed expansion area. The soils of this association are somewhat poorly drained to well drained, nearly level to strongly sloping loams to silty loams on low bench terraces and alluvial fans. They are common in the middle and northern portions of the Santa Rosa plain. They are predominant in the eastern portion of the current Russian River Valley viticultural area, including the city of Santa Rosa, and in the proposed expansion area.

The petitioner notes that the “Soil Survey of Sonoma County, California” soil association map cited above shows that the current viticultural area boundary arbitrarily cuts directly through four major soil associations: Goldridge-Cotati-Sebastopol, Clear Lake-Reyes, Steinbeck-Los Osos, and Huichica-Wright-Zamora. The soils and the geology in the proposed expansion area are nearly identical to those in the adjacent areas of the current Russian River Valley viticultural area.

TTB notes that T.D. ATF-159, which established the Russian River Valley viticultural area, does not identify any predominant soils or indicate any unique soils of the viticultural area.

The petitioner compares Brix for grapes grown in both the current viticultural area and the proposed expansion area. Brix is the quantity of dissolved solids in grape juice, expressed as grams of sucrose in 100 grams of solution at 60 degrees Fahrenheit (see 27 CFR 24.10); thus, Brix is the percent of sugar by weight. Citing a brochure published by the Russian River Winegrowers Association, the petitioner notes that Pinot Noir and Chardonnay are the two most prominent grape varieties grown in the established Russian River Valley viticultural area. The successful cultivation of the Pinot Noir grape, in particular, has been considered a hallmark of the Russian River Valley viticultural area, and the Pinot Gris grape variety recently has been growing in popularity.

Data submitted with the petition shows the 4-year average Brix comparisons for the period 2003-6 for the Pinot Noir, Chardonnay, and Pinot Gris varieties among three vineyards in the current Russian River Valley viticultural area and the Two Rock Ranch Vineyard in the proposed expansion area (see table below). The petitioner asserts that the Brix levels for each variety at all of the vineyards are very similar, reflecting similar growing conditions for the grapes.

In addition to the petition evidence summarized above, the petition includes six letters of support from area grape growers and winery owners. The supporters generally state their belief that the proposed expansion area has the same grape growing conditions as the current Russian River Valley viticultural area. The petition also includes a “Petition of Support: Russian River Valley AVA Expansion” with 208 signatures.

Prior to and during review of the petition for the proposed expansion, TTB received by mail, facsimile transmission, and e-mail more than 50 pieces of correspondence opposing the petitioner's proposed expansion. The correspondence generally asserts that the proposed expansion area falls outside the coastal fog line and thus has a different climate than that of the current viticultural area. The opponents of the proposed expansion are mostly vineyard or winery owners from the current viticultural area. Several of them state that even though grapes grown in the proposed expansion area “may eventually be brought to similar Brix, pH and total acidity maturity, the bloom and harvest dates are much later than in the Russian River Valley.” TTB, while noting this opposing correspondence, also notes that the assertions in the correspondence were not accompanied by any specific data that contradicts the petitioner's submitted evidence.

TTB notes that the current boundaries of the Russian River Valley viticultural area and of the Green Valley of Russian River Valley viticultural area (which lies entirely within the Russian River Valley area) extend beyond the Northern Sonoma viticultural area boundary to the south and southeast; in the case of the Russian River Valley viticultural area, this was as a result of the 30,200-acre, 2005 expansion approved in T.D. TTB-32. The currently proposed 14,044-acre expansion of the Russian River Valley viticultural area similarly is outside the boundary line of the Northern Sonoma viticultural area.

TTB also proposes in this document a southern and southeastern expansion of the Northern Sonoma viticultural area boundary line to encompass all of the Russian River Valley viticultural area, including the currently proposed expansion of the Russian River Valley viticultural area, so that all of the Russian River Valley viticultural area would again fall within the Northern Sonoma viticultural area, as was the case prior to the 2005 expansion. The Northern Sonoma viticultural area would increase in size by 44,244 acres to 394,088 acres, or by 9 percent. The following information is provided in support of this proposed expansion.

The Northern Sonoma viticultural area was established on May 17, 1985, by T.D. ATF-204 (50 FR 20560), which stated at 50 FR 20562:

The originally established Northern Sonoma viticultural area was expanded by T.D. ATF-233, published in the Federal Register on August 26, 1986 (51 FR 30352) and, again, by T.D. ATF-300, published in the Federal Register on August 9, 1990 (55 FR 32400).

The current southern portion of the boundary line of the Northern Sonoma viticultural area, west to east, follows California State Highway 12 from its intersection with Bohemian Highway, through the town of Sebastopol, to its intersection with Fulton Road. Although T.D. ATF-204 does not explain the basis for the choice of California State Highway 12 as the southern portion of the Northern Sonoma boundary line, TTB notes that at that time California State Highway 12 also formed the southern portion of the boundary line of the Russian River Valley viticultural area.

T.D. ATF-204 included information regarding the geographical meaning of “Northern Sonoma” as distinct from the rest of Sonoma County. Although a Web search conducted by TTB failed to disclose conclusive information regarding current nonviticultural usage of “Northern Sonoma” as a geographical term, a Web search for “Southern Sonoma County” did disclose specific geographical data. The Southern Sonoma County Resource Conservation District (SCC-RCD) Web site has Sonoma County maps and describes the district as including the “southern slopes of Mecham Hill” (alternative spelling of “Meacham,” as on the USGS map), as the northern portion of the Petaluma River watershed in southern Sonoma County. Meacham Hill, according to the USGS Cotati map, lies 1.25 miles southeast of the area included in the expansion of the Northern Sonoma viticultural area proposed in this document. Further, the SCC-RCD maps show that the southern Sonoma County watershed excludes the Gold Ridge District, which comprises much of the Russian River watershed, including the Russian River Valley viticultural area and the area proposed in this document to be added to it.

Sonoma County Relocation, a real estate service, defines southern Sonoma County as extending south from the town of Penngrove. According to the USGS Cotati map, Penngrove lies 2.4 miles east-southeast of the proposed expansion of the Northern Sonoma viticultural area boundary line. The City of Petaluma, the southernmost large population center in Sonoma County, lies 6 miles southeast of the proposed expansion to the Northern Sonoma viticultural area.

Based on the above, we believe it is reasonable to conclude that the name “Northern Sonoma”, as distinct from southern Sonoma County, includes all of the Russian River Valley viticultural area, including the proposed expansion of that area that is the subject of this document.

According to the USGS Sonoma County topographical map, the topography of the area that would be included in the proposed expansion of the Northern Sonoma viticultural area has only a few gently rolling hills and ridges in the large region known as “Cotati Valley.” The topography of the expansion area mirrors the valley terrain that is to its north and that is within the original boundary line.

TTB concludes that the petition to expand the 155,024-acre Russian River Valley viticultural area by 14,044 acres merits consideration and public comment, as invited in this notice. TTB also concludes that the expansion of the Northern Sonoma viticultural area to conform its southern and southeastern boundary line to that of the expanded Russian River Valley viticultural area merits consideration and public comment.

See the narrative boundary descriptions of the petitioned-for expansion of the Russian River Valley viticultural area and the TTB-proposed expansion of the Northern Sonoma viticultural area in the proposed § 9.66 and § 9.70 regulatory text amendments published at the end of this notice.

The petitioner provided the required map to document the proposed expansion of the Russian River Valley viticultural area, and we list it below in the proposed § 9.66 regulatory text amendment. TTB relied on maps provided for the 2005 expansion of the Russian River Valley viticultural area and the map provided by the petitioner for the current expansion to document the boundary description for the proposed expansion of the Northern Sonoma viticultural area. A revised and expanded list of maps is included in the proposed § 9.70 regulatory text amendment.

The proposed expansions of the Russian River Valley and Northern Sonoma viticultural areas will not affect currently approved wine labels. The approval of this proposed expansion may allow additional vintners to use “Russian River Valley” or “Northern Sonoma” as an appellation of origin on their wine labels. 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. 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 term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). Different rules apply if a wine has a brand name containing a viticultural area name or other viticulturally significant term 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 expand the Russian River Valley viticultural area as described above. We specifically request comment on the similarity of the proposed expansion area to the current Russian River Valley viticultural area. In particular, we would like comments on the climate of the proposed Russian River Valley viticultural area expansion area as compared to that of the current viticultural area and on the placement of the boundary lines for the proposed expansion.

We also invite comments on the proposed expansion to the Northern Sonoma viticultural area as described in this document. Specifically, we are interested in comments that address this proposed expansion as it relates to the 2005 expansion and to the current proposed expansion of the Russian River Valley viticultural area.

Whether in favor of, or in opposition to, either of the proposed expansions, you should support any comments made with specific data or other appropriate information about the name, proposed boundaries, or distinguishing features of the proposed expansion 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-2008-0009 on “ Regulations.gov ,” the Federal e-rulemaking portal, at http://www.regulations.gov . A direct link to that docket is available under Notice No. 90 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. 90 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-2008-0009 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. 90. 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.

Jennifer Berry drafted this notice. Other staff members of the Regulations and Rulings Division contributed to the notice.

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

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0497), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time. Enter the docket number for this rulemaking (USCG-2008-0497) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or, Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, MA 02110, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov .

We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

In 1982, three anchorages were established in response to a request by the Boston Harbormaster. These three anchorages were designated Boston Inner Harbor A, Boston Inner Harbor B, and Boston Inner Harbor C. When they were created, 39 of 43 comments were in favor of the anchorage establishments. Many of the initial commenters identified themselves as members of the Boston Harbor Sailing Club, a sailing club located in close proximity to the proposed anchorage area at that time. Of the disfavoring groups, the Department of the Army, Corps of Engineers expressed some concern about Anchorage Area “C” encroaching on the Fort Point Channel approach. Another commenter complained that Anchorage Area “A”, extended southward, interfering with the approach to Rowes Wharf. The two remaining commenters represented commercial interests opposed to the Anchorage Areas, especially Anchorage Area “C”.

A public hearing was held thereafter in which six commenters voiced their support for the Anchorage Area. One commenter, however, expressed concern about the proximity of Anchorage Area “C” to the main shipping channel for Boston Harbor. With an average speed of six (6) knots, a large vessel transiting the area could damage closely anchored sailboats. The same commenter also disapproved of the way Anchorage Area “C” encroached on the Fort Point Channel. Another commenter complained about Anchorage Area “A” and the difficult approach that would be required by a vessel attempting to moor on Rowes Wharf. The final commenter was concerned about the navigational safety of the Fort Point Channel approach, which was reduced by Anchorage Area “C”, and also agreed with the concerns about the approach to Rowes Wharf.

At that time, in response to the comments received, the Anchorage Areas “A” and “C” were modified in response to reasonable complaints that were raised by commercial parties. Each of the areas was plotted on a large scale chart providing for greater accuracy. The southern boundary of Anchorage Area “A” was moved northward to allow a more favorable approach to Rowes Wharf and the southern boundary of Anchorage Area “C” was relocated northward to open up the approach to Fort Point Channel. The eastern boundary of Anchorage Area “C” was moved away from the main shipping channel.

At the same time, administration of the anchorage area was given to the Harbormaster of the City of Boston pursuant to local ordinances. The City of Boston was also given charge of installing and maintaining suitable navigational aids to mark the limits of the anchorage area.

In 1985, in response to a request by the Boston Harbormaster, Boston Police Department and the developer of the Rowes Wharf reconstruction project, a modification to the anchorages was deemed to be required because redevelopment of the Rowes Wharf area in Boston would change recreational and commercial vessel traffic patterns in the Rowes Wharf waterfront area. The presence of the existing Anchorage Area B would impede the passage of vessels in and out of Rowes Wharf and would create a navigation safety hazard if vessels were anchored there. Therefore, this modification removed Anchorages A, B and C and established Boston Inner Harbor Anchorage Area “A”.

Since this time, Boston Harbormasters have permitted the Boston Harbor Sailing Club to establish moorings in Anchorage Area A. The Boston Harbor Sailing Club rents the moorings to customers who then apply to the City of Boston for a permit allowing the mooring. Although the moorings are relatively small, the associated anchoring systems range from 1000 to 4000 pounds.

In addition, when the anchorage was established, the Coast Guard used the North American Datum 1927 (NAD27) as a plotting system. Since then, however, the Coast Guard adopted the North American Datum 1983 (NAD83) for its plotting system. This new system changed the coordinate positions of the anchorages on the charts. In this rulemaking, the Coast Guard intends to update the position of this anchorage using NAD83 coordinates.

When Rowes Wharf was finished, the new wharf had a set of docks attached to it. The current placement of these docks does not allow enough of a fairway for vessels to transit between the anchorage area and the pier facings. Changing the size of the anchorage area will allow this to occur by changing the positions of the buoys.

The Coast Guard is proposing to increase the size of the Boston Inner Harbor Anchorage Area “A”. By enlarging Anchorage Area “A” and shifting the positions of the buoys, it will correct what is currently an unsafe condition, and allow for the safe passage of vessels between the wharf and the anchorage. This regulation will also allow for the creation of a slightly larger anchorage area. By enlarging the anchorage area, the current problem with boats maintaining a mooring and swinging out into the channel will be alleviated.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary, as the creation of the anchorage modifies the buoys which will align more efficiently with current traffic patterns.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of recreational vessels transiting in the vicinity of the anchorage, the Boston Aquarium, Boston Harbor ferry vessels transiting the local area as well as those vessels transiting into Anchorage Area “A”.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Chief Petty Officer Eldridge McFadden by mail at United States Coast Guard Sector Boston, 47 Commercial Street, Boston, MA 02109. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 5100.1 and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination under the instruction that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0747), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing.

If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov at any time. Enter the docket number for this rulemaking (USCG-2008-0747) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Waterways Management Division, U.S. Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA 98134, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The Thea Foss and Wheeler-Osgood Waterways are part of the Commencement Bay Nearshore/Tideflats Superfund Cleanup Site. The Thea Foss Waterway is the southernmost of the waterways in Commencement Bay, and the Wheeler-Osgood Waterway is a smaller waterway connected to the eastern shoreline of the Thea Foss Waterway at approximately its midpoint. The Thea Foss and Wheeler-Osgood Waterways cleanup encompassed the inner approximately three-fourths of the waterway, with active remediation performed primarily south of the 11th Street Bridge. This site is bounded by numerous publicly and privately owned properties. The City of Tacoma is leading the cleanup and monitoring effort in approximately 80% of the Thea Foss and Wheeler-Osgood Waterways in conjunction with the United States Environmental Protection Agency. A group of private utilities performed the cleanup in the remainder of the waterway.

Remediation activities performed in the Thea Foss and Wheeler-Osgood Waterways included a combination of dredging, placement of enhanced natural recovery material (i.e., approximately 6 inches of clean sand), placement of a thick-layer cap, and natural recovery. These thick-layer caps consist of approximately three feet of sand and gravel and/or riprap and were placed in various locations within the waterway to contain contaminated sediments. These caps were designed to withstand activities common to a working waterfront. The thick-layer caps cover approximately 30 acres of sediment in the waterway.

This will be a permanent regulation restricting activities such as anchoring, dragging, trawling, spudding, or other activities that involve disrupting the integrity of the caps. Activities common in the proposed regulated areas include recreational boating, tugboat movement, and shipyard activities. The thick-layer cap areas were designed to be compatible with the activities described above that are associated with a working waterfront. The material used for the caps was chosen to be able to contain underlying sediments without altering the main activities of the working waterway.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The proposed rule is not “a significant regulatory action” because the regulated areas established by the rule would encompass a small area that should not impact commercial or recreational traffic and prohibited activities are not routine for the designated areas.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The U.S. Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to anchor, dredge, spud, lay cable or disturb the seabed in any fashion when this rule is in effect. The zone would not have a significant economic impact due to its small area.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact ENS Hiedi Bevis, U.S. Coast Guard Sector Seattle, Waterways Management Division, at 206-217-6147. The U.S. Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the U.S. Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the U.S. Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination under the Instruction that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. As a proposal to establish a regulated navigation area, this rule meets the criteria outlined in paragraph (34)(g).

A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Table of Contents I. Background Information A. Why is EPA taking this action? II. EPA's Evaluation A. What criteria were used to evaluate rules submitted to update 40 CFR part 55? B. What requirements were submitted to update 40 CFR part 55? III. Administrative Requirements A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Coordination With Indian Tribal Government G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Background Information A. Why is EPA taking this action?

On September 4, 1992, EPA promulgated 40 CFR part 55, 1 which established requirements to control air pollution from OCS sources in order to attain and maintain federal and state ambient air quality standards and to comply with the provisions of part C of title I of the Act. Part 55 applies to all OCS sources offshore of the States except those located in the Gulf of Mexico west of 87.5 degrees longitude. Section 328 of the Act requires that for such sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the COA. Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

Pursuant to § 55.12 of the OCS rule, consistency reviews will occur (1) At least annually; (2) upon receipt of a Notice of Intent under § 55.4; or (3) when a state or local agency submits a rule to EPA to be considered for incorporation by reference in part 55. This proposed action is being taken in response to the submittal of requirements submitted by the Ventura County APCD. Public comments received in writing within 30 days of publication of this document will be considered by EPA before publishing a final rule. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the Act. Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

In updating 40 CFR part 55, EPA reviewed the rules submitted for inclusion in part 55 to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure they are not arbitrary or capricious. 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules, 2 and requirements that regulate toxics which are not related to the attainment and maintenance of federal and state ambient air quality standards.

1. After review of the requirements submitted by the Ventura County APCD against the criteria set forth above and in 40 CFR part 55, EPA is proposing to make the following District requirements applicable to OCS sources:

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (“OMB”) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB Review. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have created an adverse material effect. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA.

The OMB has approved the information collection requirements contained in 40 CFR part 55, and by extension this update to the rules, under the provisions of the Paperwork Reduction Act , 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0249. Notice of OMB's approval of EPA Information Collection Request (“ICR”) No. 1601.06 was published in the Federal Register on March 1, 2006 (71 FR 10499-10500). The approval expires January 31, 2009. As EPA previously indicated (70 FR 65897-65898 (November 1, 2005)), the annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 549 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable. In addition, EPA is amending the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to list the regulatory citations for the information requirements contained in this final rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

These rules will not have a significant economic impact on a substantial number of small entities. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have had a significant economic impact on a substantial number of small entities. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation as to why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's proposed rules contain no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or to the private sector in any one year. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have created an adverse material effect. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA.

Executive Order 13132, entitled “Federalism” (64 FR 43255 (August 10, 1999)), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects 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.”

This proposed rule does not have federalism implications. It will not have substantial direct effects 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, as specified in Executive Order 13132. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. These rules do not amend the existing provisions within 40 CFR part 55 enabling delegation of OCS regulations to a COA, and this rule does not require the COA to implement the OCS rules. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comments on this proposed rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal government and Indian tribes and thus does not have “tribal implications,” within the meaning of Executive Order 13175. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. In addition, this rule does not impose substantial direct compliance costs tribal governments, nor preempt tribal law. Consultation with Indian tribes is therefore not required under Executive Order 13175. Nonetheless, in the spirit of Executive Order 13175 and consistent with EPA policy to promote communications between EPA and tribes, EPA specifically solicits comments on this proposed rule from tribal officials.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885 (April 23, 1997)), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. In addition, the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportional risk to children.

This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable laws or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decided not to use available and applicable voluntary consensus standards.

As discussed above, these rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. In the absence of a prior existing requirement for the state to use voluntary consensus standards and in light of the fact that EPA is required to make the OCS rules consistent with current COA requirements, it would be inconsistent with applicable law for EPA to use voluntary consensus standards in this action. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this proposed action. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements.

Although EPA lacks authority to modify today's regulatory decision on the basis of environmental justice considerations, EPA nevertheless explored this issue and found the following. This action, namely, updating the OCS rules to make them consistent with current COA requirements, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Environmental justice considerations may be appropriate to consider in the context of a specific OCS permit application.

Title 40, Chapter I, of the Code of Federal Regulations is proposed to be amended as follows:

VA's mission is to serve veterans. Buying from SDVOSBs and VOSBs directly supports VA's mission. Supporting service-disabled veterans who own businesses contributes significantly in restoring their quality of life while enhancing transition from active duty to civilian life. Such acquisitions maintain the socioeconomic well-being of the Nation and carry out VA's strategic goals. Section 1.102-2(d) of the Federal Acquisition Regulation (FAR) (codified at 48 CFR chapter 1) provides that the Federal Acquisition System “must support the attainment of public policy goals adopted by the Congress and the President.” It is public policy, as expressed in 15 U.S.C. 637 and 644 that SDVOSBs and VOSBs, among others, shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency.

Sections 502 and 503 of Public Law 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, (codified at 38 U.S.C. 8127 and 8128) contain provisions that authorize VA to create a unique procurement program among Federal agencies. This program would permit VA contracting officers to conduct acquisition actions limited to SDVOSBs or VOSBs for the Department's requirements. The law requires the Secretary to give priority to a small business concern owned and controlled by veterans.

On October 20, 2004, the President issued Executive Order 13360, Providing Opportunities for Service-Disabled Veteran Businesses to Increase Their Federal Contracting and Subcontracting. The Executive Order directs the heads of agencies to significantly increase opportunities for service-disabled veteran businesses in Federal prime contracting and subcontracting actions. To achieve that objective, the Executive Order requires agencies to more effectively implement section 15(g) of the Small Business Act (15 U.S.C. 644(g)) through various efforts, including the development of a strategic plan to implement Executive Order 13360. VA has developed its strategic plan, which is posted at the following Internet Web site: http://www.vetbiz.gov/fpp/fpp.htm.

VA proposes to amend the VAAR to implement the changes required by 38 U.S.C. 8127 and 8128 and some rulemaking aspects of VA's strategic plan for Executive Order 13360. Specifically, this proposed rule would allow VA contracting officers to:

• Under certain conditions, permit non-competitive sourcing under the simplified acquisition threshold with SDVOSBs or VOSBs.

• Require set-asides for SDVOSBs or VOSBs above the simplified acquisition threshold when the contracting officer has a reasonable expectation that two or more eligible SDVOSBs or VOSBs will submit offers and that the award can be made at a fair and reasonable price that offers the best value to the United States.

• Under certain conditions, permit non-competitive sourcing for SDVOSBs or VOSBs above the simplified acquisition threshold when the contracting officer determines that a fair and reasonable price will be obtained as a result of negotiations for requirements not to exceed $5 million.

• Include evaluation factors in negotiated acquisitions that give preference to SDVOSBs and VOSBs and preference to offerors who propose to include such businesses as subcontractors.

• Require offerors who propose to use SDVOSBs or VOSBs as subcontractors to utilize eligible businesses.

• Require VOSBs participating in the Department's acquisitions to register in VetBiz.gov's Vendor Information Pages (VIP) database and verify that the business meets eligibility requirements.

• Establish a VA Mentor-Protégé Program and give large businesses that participate in the program a preference in the award of VA prime contracts.

• Encourage prime contractors and mentors to assist SDVOSBs and VOSBs in obtaining bonding when required.

• Revise the eligibility definition for “service-disabled veteran-owned small business concerns” to include a spouse who obtains ownership rights upon the death of a 100 percent service-disabled veteran or a veteran who died as a direct result of a service-connected injury for a period of 10 years unless the spouse remarries or sells the interest in the business.

• Recommend debarment of any business that willfully or deliberately misrepresents ownership and control of the business for purposes of registering in the VetBiz.gov Vendor Information Pages database or other Federal databases.

• Under certain conditions, authorize Contracting Officers to acquire supplies and services from SDVOSBs and VOSBs in lieu of Federal Prison Industries (FPI) and the Government Printing Office (GPO).

In proposed section 802.101, VA adopts and incorporates various statutory definitions. FAR 2.101 defines “service-disabled veteran-owned small business (SDVOSB) concern” and “veteran-owned small business (VOSB) concern.” Prime and subcontracting actions conducted under the authority of 38 U.S.C. 8127, as implemented in VAAR subpart 819.70, revise the definition of “service-disabled veteran-owned small business concern” and require that SDVOSBs and VOSBs must be registered in the Vendor Information Pages (VIP) and that the ownership and control of such businesses has been verified by VA. In addition, section 8127(h) enables a surviving spouse who obtains ownership rights to a business upon the death of a veteran with a service-connected disability rated at 100 percent, or a veteran who dies as a direct result of a service-connected disability, to have VA treat the business as a “service-disabled veteran-owned small business” for a 10-year period after the death of the veteran, unless the surviving spouse remarries, sells the interest in the business or the business outgrows the small business size standards. This section also includes a definition of VIP.

FAR 4.1102 currently requires all businesses to be registered in the Central Contractor Registration (CCR). Proposed section 804.1102 would require VOSBs, including SDVOSBs, to register in the VIP database, available at http://www.VetBiz.gov, in order to be eligible to participate in set-asides for SDVOSBs and VOSBs issued by VA contracting officers. In completing registration, businesses would provide information establishing that the business is owned and controlled by eligible parties, according to the criteria defined in 38 U.S.C. 8127 and FAR 19.1403.

Under certain conditions, this section would authorize contracting officers to purchase supplies and services produced or provided by FPI from eligible SDVOSBs and VOSBs, in accordance with procedures set forth in proposed VAAR subpart 819.70, without seeking a waiver from FPI. We interpret section 8128 and the legislative history to mean that SDVOSBs and VOSBs must receive priority in VA contracting opportunities without regard to other provisions of law concerning contracting preferences. This interpretation conflicts with the current contracting priorities in law, and as implemented in the FAR, for Federal agencies buying from FPI. VA finds that section 8128, being directly applicable solely to VA and providing authority without regard to any other provision of law, requires VA contracting officers to have the authority to override other statutory contracting preferences to provide priority to SDVOSBs and VOSBs to meet VA's socioeconomic goals for such concerns. Therefore, proposed section 808.603 is the only means available to VA to implement the requirement in section 8128 that veterans' small businesses have priority in VA acquisitions that would normally be awarded under FPI.

This section would authorize contracting officers to acquire government printing from eligible service-disabled veteran-owned small businesses and veteran-owned small businesses, in accordance with procedures set forth in VAAR subpart 819.70, in lieu of the Government Printing Office (GPO). We interpret section 8128 and the relevant legislative history as authorizing VA to give priority in contracting to SDVOSBs and VOSBs without regard to other provisions of law concerning contracting preferences. This interpretation conflicts with the current contracting priority in law, and as implemented in the FAR, which provides that Federal agencies buying printing services must procure such services from GPO. VA finds that section 8128, being directly applicable solely to VA and providing authority for priority in VA contracting without regard to any other provision of law, requires VA contracting officers to have the authority to override the statutory contracting preference for GPO services and instead provide priority in contracting to SDVOSBs and VOSBs for printing services and related supplies. Therefore, proposed section 808.803 is the only means available to VA to implement section 8128.

FAR 9.406-2 lists several reasons for which a debarring official may initiate a debarment action. Proposed VAAR 809.406-2 adds one additional reason: misrepresentation of status as an SDVOSB or a VOSB, in accordance with section 8127(g).

FAR 10.001 requires agencies to conduct market research on an ongoing basis and to effectively identify the capabilities of small businesses to meet agency requirements. VAAR section 810.001 would establish that, when conducting market research, VA contracting teams shall use the VIP database, in addition to other sources of information.

This section would require contracting officers to record VIP queries in the solicitation file.

This section would clarify that contracting officers may use other than competitive procedures to enter into a contract with an SDVOSB or VOSB when the amount is less than the simplified acquisition threshold not to exceed $5 million. Contracting officers would give first consideration to SDVOSBs.

FAR 13.202(a)(1) provides that, to the extent practicable, open market micro-purchases shall be distributed equitably among qualified suppliers. The set-aside provisions of FAR Part 19 do not apply to micro-purchases. However, in accordance with sections 8127 and 8128, VA would make an exception to this FAR requirement when supplies are available from SDVOSBs or VOSBs. We would add section 813.202 to allow preference for SDVOSB and VOSB sources when making local open market micro-purchases using the purchase card. In such cases, equitable distribution of open market micro-purchases among all qualified suppliers would not be required. Instead, open market micro-purchases would be equitably distributed among all qualified SDVOSBs or VOSBs, respectively, to the maximum extent practicable. We believe that this change would assist VA in meeting its statutory goals for award of contracts to SDVOSBs and VOSBs.

To implement sections 8127 and 8128, VA would add sections 815.304 and 852.215-70 to require VA contracting officers to: (1) Include provisions in negotiated solicitations giving preference to offers received from VOSBs and additional preference to offers received from SDVOSBs; (2) use past performance in meeting SDVOSB subcontracting goals as a non-price evaluation factor in selecting offers for award; (3) use the proposed inclusion of SDVOSBs or VOSBs as subcontractors as an evaluation factor when competitively negotiating the award of contracts or task or delivery orders; and (4) consider participation in VA's Mentor-Protégé Program as an evaluation factor when competitively negotiating the award of contracts or task or delivery orders. VA is particularly interested in receiving comments on the proposed mandatory inclusion of evaluation preferences for SDVOSBs and VOSBs in negotiated acquisitions.

In accordance with section 8127(a)(4), we propose to require prime contractors who offer to use one or more SDVOSBs or VOSBs as subcontractors in accordance with proposed section 852.215-70, Veteran-Owned Small Business Evaluation Factors, to actually use those subcontractors or to replace any proposed subcontractor who is not used for the specified subcontract with another SDVOSB or VOSB subcontractor. This subsection would be implemented under proposed new sections 815.304-70 and 852.215-71. Further, this subsection would help ensure that SDVOSBs and VOSBs receive subcontract awards under VA prime contracts, as prime contractors will be required to report only utilization of companies appearing in the VIP database as “verified” to be owned and controlled by eligible veterans or surviving spouses.

This section would prescribe insertion of certain contract clauses in acquisitions from SDVOSBs and VOSBs, including section 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors, and section 852.215-71, Evaluation Factor Commitments, for applicable solicitations and contracts.

This section would authorize the Secretary to establish goals for each fiscal year for participation in Department contracts by SDVOSBs and VOSBs. Furthermore, in order to establish contracting priority for veteran-owned and -controlled small businesses in accordance with section 8128, the Secretary may decrease other status-specific small business goals set forth by section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) upon consultation with the Administrator of the U.S. Small Business Administration.

FAR 19.307 contains instructions for processing protests of status as a SDVOSB concern. Section 8127 contains additional eligibility criteria for VA's processing of protests and authorizes VA to conduct VOSB set-asides. Proposed VAAR section 819.307 would address protest procedures and other information specific to VA's unique acquisition program.

In accordance with section 8127, proposed section 819.704 would require contracting officers to include suggested subcontracting goals in acquisitions that may require a subcontracting plan. To receive subcontracting plan accomplishment credit for subcontracting with SDVOSBs and VOSBs, prime contractors would be required to use eligible businesses identified in the VIP database.

This section would prescribe procedures for appeals of VA contracting officers' SDVOSB set-aside decisions, VOSB set-aside decisions, and prime contractor credits for subcontracting.

This section would require contracting officers to insert the clause in section 852.219-9, Small Business Subcontracting Plan Minimum Requirements, for solicitations and contracts that include the FAR clause at 52.219-9, Small Business Subcontracting Plan.

This subpart would establish sole source contracting procedures for acquisitions under $5 million and create a new set-aside program for SDVOSBs and VOSBs.

In accordance with paragraph (3)(a) of VA's Executive Order 13360 strategic plan, we propose to establish a SDVOSB mentor-protégé program within VA under new subpart 819.71, consisting of sections 819.7101 through 819.7115, and at sections 852.219-71 and 852.219-72. We propose to establish this program to help SDVOSBs receive developmental support from VA prime contractors in order to increase the base of SDVOSBs eligible to perform VA prime contracts and to participate as subcontractors on VA prime contracts.

In accordance with paragraph (3)(f) of VA's Executive Order 13360 strategic plan, we propose to add new sections 828.106-71, 828.107-72, and 852.228-72, to encourage prime contractors to assist SDVOSBs and VOSBs in obtaining subcontractor performance and payment bonds and to encourage mentor firms to assist protégé SDVOSBs and VOSBs in obtaining acceptable bid, payment, and performance bonds as prime contractors. The ability to obtain acceptable surety bonds is one of the major concerns for small businesses in contracting with the Federal government for construction.

This regulation may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the law provides that the Secretary shall give priority to small business concerns owned and controlled by veterans. Service-disabled veteran-owned small businesses (SDVOSBs) and veteran-owned small businesses (VOSBs) may benefit from this regulation. Other small businesses may be indirectly affected if a greater portion of VA's small business contracts are awarded to SDVOSBs and VOSBs. However, this regulation may result in an increase in VA contracts awarded to the overall total of small businesses.

An Initial Regulatory Flexibility Analysis (IRFA) has been prepared and submitted to the Chief Counsel for Advocacy of the Small Business Administration in accordance with 5 U.S.C. 603. Interested parties are invited to submit comments on VA's regulatory flexibility analysis. The analysis is as follows:

1. Description of the reasons why action by the agency is being considered.

These proposed changes to the Veterans Affairs Acquisition Regulation (VAAR) implement sections 502 and 503 of Public Law 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006 (38 U.S.C. 8127 and 8128). The changes will also implement the rulemaking portions of VA's Strategic Plan for Executive Order 13360, Providing Opportunities for Service-Disabled Veteran Businesses to Increase Their Federal Contracting and Subcontracting ( http://www.vetbiz.gov/fpp/fpp.htm ). VA exists to serve veterans, and buying from SDVOSBs and VOSBs directly supports that mission. Such acquisitions support the socioeconomic well-being of the Nation and support VA's Strategic Goals. The proposed changes to the VA Acquisition Regulation reflect the intent of Congress that VA fulfill its special mission to serve veterans and enable them to realize the American dream that they fought to protect, especially those who became disabled while serving their country.

2. Succinct statement of the objectives of, and legal basis for, the proposed rule.

Sections 502 and 503 of Public Law 109-461 require VA to create a unique acquisition program among Federal agencies that permits preferences for SDVOSBs and VOSBs. This proposed rule would permit VA contracting officers to conduct acquisition actions with preferences for SDVOSBs or VOSBs. Specifically, this proposed rule will allow VA contracting officers to:

a. Under certain conditions, permit non-competitive sourcing under the simplified acquisition threshold with SDVOSBs or VOSBs;

b. Require set-asides for SDVOSBs or VOSBs above the simplified acquisition threshold when the contracting officer has a reasonable expectation that two or more eligible SDVOSBs or VOSBs will submit offers and that the award can be made at a fair and reasonable price that offers the best value to the United States;

c. Under certain conditions, permit non-competitive sourcing for SDVOSBs or VOSBs above the simplified acquisition threshold when the contracting officer determines that a fair and reasonable price will be obtained as a result of negotiations for requirements not to exceed $5 million;

d. Include evaluation factors in negotiated acquisitions that give preference to SDVOSBs and VOSBs and preference to offerors who propose to include such businesses as subcontractors;

e. Require offerors who propose to use SDVOSBs or VOSBs as subcontractors to utilize eligible businesses;

f. Require VOSBs participating in the Department's acquisitions to register in VetBiz.gov's Vendor Information Pages (VIP) database and verify that the business meets eligibility requirements;

g. Establish a VA Mentor-Protégé Program and give large businesses that participate in the program a preference in the award of VA prime contracts;

h. Encourage prime contractors and mentors to assist SDVOSBs and VOSBs in obtaining bonding when required;

i. Recommend debarment of any business that willfully or deliberately misrepresents ownership and control of the business for purposes of registering in the VetBiz.gov VIP database or other federal databases; and

j. Under certain conditions, acquire supplies and services from SDVOSBs and VOSBs in lieu of FPI and GPO.

3. Description of, and, where feasible, estimate of the number of small entities to which the proposed rule will apply.

VA cannot accurately determine how many concerns would be participating in these SDVOSB/VOSB contract awards because there is insufficient data on SDVOSBs/VOSBs that are ready and able to perform under VA requirements to support a reasonable estimate.

To establish the likely number of SDVOSBs or VOSBs that may benefit from VA's unique procurement authority there are two principal data sources, the Central Contractor Registration (CCR) database, in which a business must be listed to receive a payment from a Federal agency, and VA's VetBiz.gov VIP database. A CCR Dynamic Small Business Search query conducted on March 13, 2008, returned 40,163 VOSBs, including 11,465 SDVOSBs. A VIP query returned 10,695 VOSBs, including 6,354 SDVOSBs. The VIP database requires that businesses answer eligibility questions before they are permitted to register their business. The CCR is a self-representation database.

Under this proposed rule, VA contracting teams will be required to give priority consideration to SDVOSBs and VOSBs when using other contracting programs, like set-asides for the Historically Underutilized Business (HUB) Zone Program or 8(a) Business Development Program reserved actions or the Small Business Set-aside program. A CCR Dynamic Small Business Search conducted on March 13, 2008, returned 13,848 active HUBZone firms. Of this population, 2,565, or 19 percent, are also VOSBs. A search of active 8(a) businesses identified 9,822 current firms, which includes 1,285 VOSBs, or 14 percent of the total population. There are 63,395 woman-owned small businesses (WOSBs) in the Central Contractor Registration, of which 4,471 appear to also be VOSBs. VA notes that the SBA is in the process of establishing a WOSB set-aside program, making the percentage of WOSBs who are also VOSB eligible of interest to the Department.

There are some concerns that the proposed rule will displace business opportunities for non-veteran-owned businesses, based on the following speculations:

• Additional businesses may be opened by veterans seeking to participate in the sole source or set-aside procurement actions;

• Veteran-owned small businesses not currently in the Federal market may be expected to explore selling to VA;

• The VOSB population may increase as these businesses register in the VetBiz.gov VIP database;

• Public Law 109-461 procurement authority also requires that VA's large prime contractors use eligible businesses in order to receive subcontracting program credit for VOSBs and SDVOSBs; and

• On June 6, 2008, the Office of Federal Procurement Policy issued new guidance regarding Interagency Agreements. Under this policy, other Federal agencies with which VA executes such agreements will be governed by the procurement rules contained in this regulation. In FY 2007, interagency acquisitions were approximately $15,444,709.39, or 0.13% of total contract dollars.

The Department of Veterans Affairs has a strong commitment to supporting all types of small businesses, as demonstrated in the procurement chart below:

The preliminary Total Small Business procurement for FY2007 was $3,878,901,724.00 or 32.91%. Procurement totals for SDVOSBs and VOSBs were $2,012,552,332.00 or 17.08% and procurement totals for non-veteran-owned businesses were $1,965,729,663.00 or 16.68%, a mere .40% difference. Although, SDVOSBs and VOSBs gained 7.2% of procurements from FY2006 to FY2007 and non-veteran-owned businesses lost .44% of procurements, the non-veteran-owned businesses still received increased procurement dollars totaling $205,666,870.00 from FY2006 to FY2007. Assuming this trend and/or this new procurement authority does increase procurement percentages for SDVOSBs and VOSBs and the procurement percentages for non-veteran-owned businesses decrease, as previously demonstrated from FY2006 to FY2007, the contracting dollars and/or opportunities for non-veteran-owned businesses were not adversely impacted economically. VA also estimates that it would be unrealistic for SDVOSBs and VOSBs to absorb the entire 16.68% of procurements that are currently being awarded to the non-veteran-owned businesses. The SDVOSBs and VOSBs are more likely to sub-contract with the non-veteran-owned businesses with existing contracts rather than investing in costly business expansions. Based on prior procurement trends, VA believes there would not be an adverse economic impact on non-veteran-owned businesses, but requests comment from the public on other possible impacts this rule may have on small entities.

This rule also creates a Mentor-Protégé Program for SDVOSBs and VOSBs. It is the expectation that at such time as this rule is finalized, those Protégé entities would directly benefit from the forms of Mentoring described in this proposed rule. VA believes there would not be an adverse economic impact on small contractors or subcontractors, but requests comment from the public on other possible impacts this rule may have on small entities. Comments will be used as a factual basis upon which VA would certify that this rule will not have a significant economic impact on a substantial number of small entities.

For the reasons outlined above, given the relatively small number of businesses owned and controlled by veterans in the Federal marketplace and with the understanding that this rule would apply only to VA and its large prime contractors, VA believes this rule would not have a major impact on small entities doing business in the Federal marketplace.

VA welcomes comments concerning the potential number of small entities that could become eligible under this rule. VA also specifically requests comments concerning the rule's impact on small entities that are not VOSBs.

4. Description of projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.

There are two categories of coverage in this proposed rule that could potentially require the collection of information from contractors. VA will collect information from prime contractors seeking a preference for subcontracting with SDVOSBs or VOSBs. That information would include identity of the SDVOSBs or VOSBs, the approximate dollar value of the proposed subcontracts, and confirmation that the proposed subcontractors are eligible SDVOSBs or VOSBs as verified by the VetBiz.gov VIP database. VA estimates the cost to an individual business to be less than $100.00 for 70-75% of the businesses seeking verification, and the average cost to the entire population of veterans seeking to become verified is less than $325.00 on average. VA also will collect information in conjunction with preferences associated with the VA Mentor-Protégé Program. That information would include the program agreement, developmental plan, and reports on the success of the program.

5. Identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap, or conflict with the proposed rule.

The VAAR (48 CFR chapter 8) supplements the FAR (48 CFR chapter 1). This proposed rule would affect 48 CFR parts 802, 804, 808, 809, 810, 813, 815, 819, 828, and 852 and corresponding parts of the FAR.

6. Description of any significant alternatives to the proposed rule which would accomplish the stated objectives of applicable statutes and which would minimize any significant economic impact of the proposed rule on small entities. This proposed rule is designed to benefit SDVOSBs and VOSBs. There are no alternatives which would accomplish the stated objectives of sections 502 and 503 of Public Law 109-461 to give contracting priority to SDVOSBs and VOSBs.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined, and it has been determined to be a significant regulatory action under Executive Order 12866 because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or principles set forth in the Executive Order.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, or tribal governments, or the private sector.

Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), collections of information are contained in this proposed rule. These collections are contained in new sections that were not previously contained in the VAAR. This notice is to obtain an OMB control number for these new sections. As required under section 3507(d) of the Act, VA has submitted a copy of this rulemaking action to OMB for its review of the collection of information.

OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Comments on the collection of information should be submitted to OMB, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, with copies to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420. Comments should indicate that they are submitted in response to “RIN 2900-AM92.”

There are categories of coverage in this proposed rule that could potentially require the collection of information from contractors: (1) Section 852.215-70, Veteran-Owned Small Business Evaluation Factors; and (2) subpart 819.71, VA Mentor-Protégé Program, specifically sections 819.7101 through 819.7115 and the related clauses at sections 852.219-71 and 852.219-72. There is no information available upon which to judge the impact of these PRA requirements, but since the provisions are limited to SDVOSBs and VOSBs, rather than to all small businesses, collection efforts are estimated to be minimal.

Title and section number: 852.215-70, Veteran-Owned Small Business Evaluation Factors.

Summary of collection of information: VA is proposing to give preference to prime contractors who offer to subcontract with SDVOSBs or VOSBs. VA must collect information from offerors regarding: (1) Proposed SDVOSB and VOSB subcontractors; (2) the approximate dollar value of the proposed subcontracts; and (3) eligibility of the proposed subcontractors as verified in VetBiz.gov VIP database ( http://www.VetBiz.gov ).

Description of need for information and proposed use of information: The information is submitted on a voluntary basis by those offerors who wish to qualify for this evaluation factor. The information will be used by the contracting officer to determine whether or not the offeror qualifies for extra credit in the selection of the contract awardee. Those offerors who qualify will be afforded a preference in the selection.

Description of likely respondents: Any offeror, on a negotiated solicitation that includes the applicable evaluation factor, who intends to subcontract with one or more SDVOSBs or VOSBs and who wishes to obtain a preference in the award selection.

Estimated number of respondents: 125.

Estimated frequency of responses: 1 response for each solicitation.

Estimated average burden per collection: 5 minutes.

Estimated total annual reporting and recordkeeping burden: 10 hours.

Title and section number: Subpart 819.71, VA Mentor-Protégé Program, subpart 819.71's related sections 819.7101 through 819.7115, and the related clauses at section 852.219-71, VA Mentor-Protégé Program, and section 852.219-72, Evaluation Factor for Participation in the VA Mentor-Protégé Program.

Summary of collection of information: VA is proposing to institute a Mentor-Protégé Program, whereby a large business agrees to provide developmental support to a VOSB or SDVOSB. VA must approve the Mentor-Protégé Agreement entered into by the two parties, and VA requires both parties to report on the success of the program. Mentors can qualify for additional preference on negotiated solicitations by furnishing evidence of participation in the program with their offer.

Description of need for information and proposed use of information: The information is needed for the review and evaluation of mentor applications for realism, validity, and accuracy of provided information and for conducting a mid-term evaluation at the mid-point interval to measure protégé progress against the developmental plan contained in the approved agreement. The information will also be used to evaluate the status of a business as a participant in VA's Mentor-Protégé Program for possible credit in negotiated contracts.

Description of likely respondents: Large business prime contractors and SDVOSBs or VOSBs.

Estimated number of respondents: 50.

Estimated frequency of responses: Each protégé program participant will be required to submit 3 sets of data consisting of the application and the mid- and end-term reports. Each mentor program participant will be required to submit 4 sets of data consisting of the application, the mid- and end-term reports, and, when submitting an offer, information to verify their participation in the program in order to receive evaluation credit.

Estimated average burden per collection: 1 hour weighted average per data submission.

Estimated total annual reporting and recordkeeping burden: 200 hours (4 data submissions @ 1 hour each times 50 program participants).

The Department considers comments by the public on collections of information in—

• Evaluating whether the collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;

• Evaluating the accuracy of the Department's estimate of the burden of the collections of information, including the validity of the methodology and assumptions used;

• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

OMB is required to make a final decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the proposed rule.

For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 48 CFR Chapter 8 as follows:

After issuing the March 31, 2008, Notice of Proposed Rulemaking concerning unmanned aircraft accidents, the NTSB discovered that a problem existed with the Web site, available at http://www.regulations.gov , that the NTSB listed in the Notice as one mechanism by which it would receive public comments. In particular, the NTSB subsequently determined that commenters were unable to submit comments through that Web site. The NTSB has arranged for this problem to be corrected and verified that commenters may now access the Notice of Proposed Rulemaking and submit comments via http://www.regulations.gov . As such, the NTSB is allowing the comment period for the Notice of Proposed Rulemaking to remain open until September 30, 2008. The NTSB notes that it received several comments via facsimile and postal mail; commenters who submitted comments via facsimile or postal mail need not resubmit them.

The CPS FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into two categories: actively managed and monitored. Harvest guidelines (HG) for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

During public meetings each year, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (CPSMT), the Council's Coastal Pelagic Species Advisory Subpanel (CPSAS) and the CPS Subcommitee of the Scientific and Statistical Committee (SSC). At that time, the biomass, the acceptable biological catch (ABC) and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with HG recommendations and comments from the Team and Subpanel. Following review by the Council and after hearing public comments, the Council makes its HG recommendation to NOAA's National Marine Fisheries Service (NMFS). The annual HG is published in the Federal Register as close as practicable to the start of the fishing season. The Pacific mackerel season begins on July 1 and ends on June 30 of each year.

For the 2008-2009 Pacific mackerel management season an updated assessment for Pacific mackerel was conducted and then reviewed by the SSC CPS Subcommittee, the CPSMT and the CPSAS during a series of meetings May 13-15, 2008, in Long Beach California. During these meetings the current stock assessment for Pacific mackerel, which included a preliminary biomass estimate and ABC, were presented and reviewed in accordance with the procedures of the FMP. Based on a total stock biomass estimate of 264,732 metric tons (mt) the harvest control rule in the CPS FMP produces an ABC of 51,772 mt for the 2008-2009 management season.

In June, the Council held a public meeting in Foster City, California, during which time the Council reviewed the current stock assessment, biomass numbers and ABC as well as heard statements from the SSC, Team and Subpanel. The SSC endorsed the assessment as the best available science for use in management. Both the Team and Subpanel recommended setting the 2008-2009 HG below ABC and no higher than 40,000 mt.

Following the SSC, Team and Subpanel reports the Council adopted a HG of 40,000 mt for the 2008-2009 fishing year. This HG recommendation is the same as the one recommended and implemented by NMFS for the 2007-2008 fishing season. Establishing a HG for the directed fishery substantially below the ABC was recommended in response to uncertainty associated with changes to assessment modeling parameters and the estimate made in the FMP that the domestic fishery appears to be market limited to roughly 40,000 mt. The Council also adopted the Subpanel recommendation that in the event that the 40,000 mt is attained by the fishery, that Pacific mackerel fishing be closed to directed harvest and only incidental harvest be allowed. The proposed incidental fishery would be constrained to a 45 percent by weight incidental catch rate when Pacific mackerel are landed with other CPS, except that up to one metric ton of Pacific mackerel could be landed per trip without landing any other CPS.

The Council may schedule an inseason review of the Pacific mackerel fishery at the nearest appropriate Council meeting, towards a possible consideration of either releasing a portion of the incidental allotment to the directed fishery or further constraining incidental landings to ensure total harvest remains below the ABC.

Information on the fishery and the stock assessment are found in the report Pacific mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2008-09 Fishing Season (see ADDRESSES ).

The harvest control rule formula in the FMP uses the following factors to determine the ABC:

1. Biomass. The estimated stock biomass of Pacific mackerel age one and above for the 2008-2009 management season is 264,732 mt.

2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 18,200 mt.

3. Distribution. The portion of the Pacific mackerel biomass estimated in the U.S. EEZ off the Pacific coast is 70 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.

4. Fraction. The harvest fraction is the percentage of the biomass above 18,200 mt that may be harvested. The FMP established this at 30 percent.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

These proposed specifications are exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

As a result, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.

This Federal Register document is accessible via the the Office of the Federal Register website www.gpoaccess.gov/fr .

The bottomfish fishery around the CNMI is managed under the Fishery Management Plan for the Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (Bottomfish FMP), which was developed by the Council, and approved and implemented by NMFS. The Council has submitted Amendment 10 to NMFS for review under the Magnuson-Stevens Fishery Conservation and Management Act. This notice announces that the amendment is available for public review and comment for 60 days. NMFS will consider public comments received during the comment period in determining whether to approve, partially approve, or disapprove Amendment 10.

CNMI nearshore areas have been fished for years by bottomfish fishermen who engage in a mix of subsistence, recreational, and small-scale commercial fishing. These fishermen typically operate small vessels (less than 25 ft (7.6 m)), and tend to fish more in the summer months when weather and sea conditions are calmer. Most of these small vessels target shallow-water bottomfishes, but some also target deep-water species. The catch from these small vessels is usually not exported, but is destined for local markets.

In addition to these small vessels, vessels over 40 ft (12.2 m) in length also target deep-water bottomfish at offshore seamounts and banks. In 2006, there were six of these larger vessels targeting bottomfish around the CNMI, and one in 2007. Landings are offloaded on Saipan and in other CNMI commercial ports, and are often exported by air to Japan.

The CNMI is close to Guam, and it is possible for large bottomfish vessels based in Guam to travel to fishing grounds in the CNMI. NMFS recently implemented a final rule that prohibits large vessels (greater than 50 ft (15.2 m)) from bottomfish fishing within 50 miles (80.5 km) around Guam (71 FR 64474; November 2, 2006). Without similar closed areas around the CNMI, operators of large Guam-based vessels may choose to fish for bottomfish within U.S. EEZ waters around the CNMI. This could result in excessive fishing pressure on bottomfish stocks at nearshore banks, potentially threatening both the fish stocks and the fisheries that have historically been dependent on these resources.

In addition to the possibility of Guam-based vessels entering the CNMI bottomfish fishery, the Council is concerned about several other issues regarding bottomfish fishing in the CNMI. First, existing data collection programs in the CNMI are insufficient to comprehensively monitor catches and determine the impacts of the fishery on the stock(s) being harvested, or to determine the species composition and amount of discarded bycatch. Second, large bottomfish vessels need to harvest relatively large catches to cover operational costs. These large catches could deplete nearshore stocks, which would threaten sustained community participation in the bottomfish fishery. Small vessels would not be able to continue operating if catch rates were significantly reduced due to heavy fishing by the larger vessels. Finally, traditional patterns of supply and consumption of bottomfish in the local community would be disrupted by reduced community participation and/or large exports of bottomfish fish from the CNMI by the operators of the large vessels.

In response to these concerns, the Council developed Amendment 10 with the following objectives: (1) ensure that adequate information is routinely collected on the CNMI's offshore bottomfish fishery; (2) provide for sustained community participation in the CNMI bottomfish fishery; and (3) encourage the consistent availability of locally caught deepwater bottomfish to CNMI markets and consumers.

Public comments on the proposed amendment must be received by October 20, 2008 to be considered by NMFS in the decision to approve, partially approve, or disapprove the amendment. A proposed rule to implement the amendment has been submitted for Secretarial review and approval. NMFS expects to publish and request public comment on the proposed regulation in the near future.