        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No.: 130919816-3953-01]
        RIN 0648-BD70
        Fisheries of the Northeastern United States; Atlantic Herring Fishery; Adjustments to 2014 Sub-Annual Catch Limits

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          This action proposes to adjust 2014 sub-annual catch limits (ACLs) for the Atlantic herring (herring) fishery to account for catch overages and underharvest in 2012. Three of the four sub-ACLs are being decreased and one sub-ACL is being increased. This would result in an increase to the overall catch available to the herring fleet.

          DATES:
          Public comments must be received no later than 5 p.m., Eastern Standard Time, on December 9, 2013.

          ADDRESSES:

          Copies of supporting documents, 2013-2015 Specifications/Framework 2 and Amendment 4 to the Herring Fishery Management Plan (FMP), are available from: Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950, telephone (978) 465-0492. These documents are also accessible via the Internet at http://www.nero.nmfs.gov.

          You may submit comments, identified by NOAA-NMFS-2013-0153, by any one of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0153, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on Adjustment to 2014 Herring Catch Limits.”
          • Fax: (978) 281-9135, Attn: Travis Ford.

            Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF formats only.

          FOR FURTHER INFORMATION CONTACT:
          Travis Ford, Fishery Policy Analyst, 978-281-9233, fax 978-281-9135.

        SUPPLEMENTARY INFORMATION:

        Background
        The Atlantic herring harvest in the United States is managed under the Herring FMP developed by the New England Fishery Management Council (Council), and was approved and implemented by NMFS in 2000. The Herring FMP divides the stock-wide herring ACL among three management areas, one of which has two sub-areas. It divides Area 1 (located in the Gulf of Maine (GOM)) into an inshore section (Area 1A) and an offshore section (Area 1B). Area 2 is located in the coastal waters between Massachusetts and North Carolina, and Area 3 is on Georges Bank (GB). The Herring FMP considers the herring stock complex to be a single stock, but there are inshore (GOM) and offshore (GB) stock components. The GOM and GB stock components segregate during spawning and mix during feeding and migration. Each management area has its own sub-ACL to allow greater control of the fishing mortality on each stock component.
        We, NMFS, determined the amount of herring landings in 2012 based on dealer reports (Federal and state) of herring purchases, supplemented with vessel trip reports (VTRs) (Federal and State of Maine) of herring landings. We compared dealer reports to VTRs for all trips that landed herring in 2012. Because VTRs are generally a hail weight or estimate of landings, with an assumed 10-percent margin of error, dealer reports are a more accurate source of landings data. However, if the amount of herring reported via VTR exceeded the amount of herring reported by the dealer by 10 percent or more, we assumed that the dealer report for that trip was in error. To improve the likelihood of not exceeding ACLs, in those instances we used the higher amount of herring reported via VTR to determine the amount of herring landed on that trip. We checked the herring landings in the VTR database for accuracy against the scanned image of the paper VTRs submitted by the owner/operator of the vessel. NMFS also verified VTR landings by comparing reported landings to harvesting potential and applicable possession limits for each vessel.
        We assigned herring landings reported on the VTRs to herring management areas using latitude and longitude coordinates. We manually corrected VTRs with missing or invalid latitude/longitude coordinates using the statistical area reported on the VTR. If the fisherman did not report statistical area on the VTR, then we used a combination of recent fishing activity and a review of the scanned images of the original VTR to assign landings to herring management areas. We prorated dealer reports without corresponding VTRs to herring management area using the proportion of total herring landings stratified by week, gear type, and management area.
        As we were reviewing the 2012 herring data and comparing individual VTRs with individual dealer reports, we solved data errors resulting from misreporting. Common dealer reporting issues were: Missing dealer reports, incorrect or missing VTR serial numbers, incorrect or missing vessel permit numbers, and incorrect dates. VTRs had similar errors. Common VTR reporting issues were: Missing VTRs, missing or incorrect dealer information, incorrect amounts of landed herring, incorrect dates, and missing or incorrect statistical area. The quality of herring landings data is affected by unresolved data errors; therefore, we strongly encourage vessel owner/operators and dealers to double-check reports for accuracy and to ensure that reports are submitted on a timely basis.

        We determined discards of herring in 2012 by extrapolating Northeast Fisheries Observer Program (observer) data to the entire herring fishery. We divided the amount of observed herring discards (“Atlantic herring” and “herring unidentified”) by the amount of observed fish landed. Then we multiplied that discard ratio by the amount of all fish landed for each trip to calculate total amount of herring discards in 2012. We determined the amount of discards for each management area and gear type, and calculated the total herring catch for 2012 by adding the amount of herring landings to the amount of herring discarded. The Council's Herring Plan Development Team reviewed and approved this methodology used by NMFS to calculate the amount of landed herring and the amount of discarded herring.

        Amendment 4 to the Herring FMP final rule (76 FR 11373, March 2, 2011) revised the Herring FMP to address ACL and accountability measure (AM) requirements. As a way to account for ACL overages in the herring fishery, Amendment 4 established an AM that provided for overage deductions in the year immediately following the catch overage determination. If the catch of herring exceeds any ACL or sub-ACL, NMFS will subsequently deduct the overage from the corresponding ACL/sub-ACL in the year following the catch overage determination. Amendment 4 also specified that NMFS will announce overage deductions in the Federal Register prior to the start of the fishing year, if possible.
        We published a final rule for Framework 2 and the 2013-15 specifications on October 4, 2013 (78 FR 61828). Among other measures, Framework 2 allows for the carryover of unharvested catch in the year immediately following the catch determination. Up to 10 percent of each sub-ACL may be carried over, provided the stock-wide catch did not exceed the stock-wide ACL. The carryover provision allows a sub-ACL increase for a management area, but it does not allow a corresponding increase to the stock-wide ACL. The management area sub-ACLs established for 2014 are: 31,200 mt for Area 1A, 4,600 mt for Area 1B, 30,000 mt for Area 2, and 42,000 mt for Area 3 (Table 1).
        We completed the 2012 catch determination in August 2013, so we would apply the adjustments for any overharvests or carryover in 2012 to the 2014 sub-ACLs. In 2012, the herring fleet underharvested the stockwide ACL of 90,683 mt by 122 mt. However, the fleet overharvested the sub-ACLs in herring management Areas 1B (overage of 1,584 mt); 2 (overage of 336 mt); and 3 (overage of 1,325 mt). After deducting each 2012 overage, in 2014, the sub-ACL for Area 1B would be 3,016 mt (4,600 mt reduced by 1,584 mt); the sub-ACL for Area 2 would be 29,664 mt (30,000 mt reduced by 336); and the sub-ACL for Area 3 would be 40,675 mt (42,000 mt reduced by 1,325 mt) (Table 1).
        The herring fleet underharvested the sub-ACL from Area 1A by 3,366 mt (approximately 12 percent of the 2012 Area 1A sub-ACL of 27,668 mt). Since the fleet did not exceed the stock-wide ACL in 2012, the fleet would carryover up to 10 percent of the 2012 Area 1A sub-ACL to the 2014 Area 1A sub-ACL. After adding the carryover from the 2012 sub-ACL, 2014 Area 1A sub-ACL would be 33,967 mt (increased by 2,767 mt, equal to 10 percent of the 2012 Area 1A sub-ACL of 27,668 mt) (Table 1).

          Table 1—Herring Management Area 2014 Herring Quotas
          [mt]

            Area
            2014
            2014 Adjustment

            Area 1A
            31,200
            33,967

            Area 1B
            4,600
            3,016

            Area 2
            30,000
            29,664

            Area 3
            42,000
            40,675

        Classification
        Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Herring FMP, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.
        The National Environmental Policy Act analyses to support this action were completed in Amendment 4 (76 FR 11373, March 2, 2011) and 2013-2015 Specifications/Framework 2 (78 FR 46897, August 2, 2013).
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The rationale for that certification is as follows:
        Amendment 4 analyzed the effects of deducting ACL/sub-ACL overages from the subsequent corresponding ACL/sub-ACL. During a year when the fleet exceeds the ACL/sub-ACL, fishery participants may benefit economically from higher catch. In the subsequent year, when NMFS deducts the amount of the overage from that ACL/sub-ACL and the amount of harvest is lower, fishery participants may experience negative economic impacts. Deductions are the same magnitude as the overages. Therefore, if participants are active in the fishery during the overage year and the deduction year, the total economic impact on participants are expected to be neutral.
        NMFS has now identified 70 entities that held at least one limited access herring permit (category A, B, or C) in 2012. Many of these entities were active in both finfish fishing and shellfish fishing industries. In order to make a determination of size, fishing entities are first classified as participants in either the Finfish Fishing or Shellfish Fishing industry. If an entity derives more than 50 percent of its gross revenues from shellfish fishing, the $5.0 million standard for total revenues is applied. If an entity derives more than 50 percent of its gross revenues from finfish fishing, the $19.0 million standard for total revenues is applied. Based on the revised criteria, there are 7 large shellfish fishing entities to which the final rule would apply and 63 small entities to which the final rule would apply.

        Of the 63 small entities, 39 reported no revenue from herring during 2012. For the 24 small entities that were active in the herring fishery, median gross revenues were approximately $872,000 and median revenues from the herring fishery were approximately $219,000. There is large variation in the importance of herring fishing for these small entities. Eight of these 24 active small entities derive less than 5 percent of their total fishing revenue from herring. Seven of these 24 active small entities derive more than 95 percent of their total fishing revenue from herring.

        After considering the new information, and the new SBA size standards and due to the limited nature of this action and the overall increase in herring availability in 2014, there would be no disproportionate economic impacts on small entities.
        Total herring revenue in 2012 was approximately $29 million. Because most vessels that harvest herring participate in other fisheries, revenue generated by herring catch is only a portion of their income. While this action reduces the amount of fish available for harvest in three areas, it increases the overall amount of available harvest in the fishery, resulting in an overall economic benefit for the fishery. The reduced sub-ACLs in Areas 1B, 2, and 3 are estimated to equal $1 million in lost revenue in 2012. However, the increased sub-ACL in Area 1A is estimated to equal $1.1 million in gained revenue in 2012. Therefore, this action would increase revenues as a whole by approximately $100,000.
        For all the reasons described above, an initial regulatory flexibility analysis is not required and none has been prepared.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: November 19, 2013.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, performing the functions and duties of the Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 2013-28107 Filed 11-21-13; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        Maritime Administration
        46 CFR Part 388
        [Docket No. MARAD 2010 0012]
        RIN 2133-AB76
        Administrative Waivers of the Coastwise Trade Laws: New Definition of Eligible Vessels

          AGENCY:
          Maritime Administration, Department of Transportation.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Maritime Administration (MARAD, or we, our, or us) is publishing this proposed rule to change the definition of vessels eligible for a waiver of the coastwise laws under special provisions of the Coast Guard Authorization Act of 1998. Under this measure, and taking into account several factors, MARAD may waive the U.S.-build requirement allowing vessels to operate as small passenger vessels or uninspected passenger vessels authorized to carry no more than 12 passengers for hire. The new definition of “eligible vessel” deletes the requirement that the vessel be five net tons or more. That requirement is not in the enabling statute and, therefore, does not need to be in the regulations.

          DATES:
          Comments on the proposed rule are due March 29, 2010.

          ADDRESSES:
          You may submit comments [identified by DOT DMS Docket Number MARAD-2010-0012] via any of the following methods:

            Web site/Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments on the electronic docket site.

            Mail: Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room PL-401, Washington, DC 20590-0001.

            Hand Delivery: Room PL-401 of the Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

            Instructions: All submissions must include the agency name and docket number for this rulemaking. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information provided. Please see the Privacy Act heading under Regulatory Notices.

            Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to Room PL-401 of the Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Joann Spittle, Office of Cargo Preference and Domestic Trade, Maritime Administration, MAR-730, Room W21-203, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-5979 or 800-9US-FLAG; e-mail: Joann.Spittle@dot.gov.

        SUPPLEMENTARY INFORMATION:
        Public Law 105-383, which authorized the Secretary of Transportation to grant waivers of the U.S.-build requirement for the smallest of passenger vessels (those carrying 12 or fewer passengers) to operate in the coastwise trade, contained a provision that the Secretary of [Homeland Security] may issue a certificate of documentation with an appropriate endorsement for employment in the coastwise trade as a small passenger vessel or an uninspected passenger vessel in the case of an eligible vessel authorized to carry no more than 12 passengers for hire if the Secretary of Transportation, after notice and an opportunity for public comment, determines that the employment of the vessel in the coastwise trade will not adversely affect—(1) United States vessel builders; or (2) the coastwise trade business of any person that employs vessels built in the United States in that business.
        Until now, the term “eligible vessel” was understood to mean a vessel eligible for U.S. Coast Guard documentation; therefore our regulation contained a five net ton minimum vessel size limit. However, under 46 U.S.C. 12102(b), a vessel of less than five net tons may engage in the coastwise trade without documentation, if the vessel otherwise satisfies the requirements to engage in the trade.
        An unintended consequence of the present small passenger waiver regulations is that the Maritime Administration is unable to grant waivers to vessels of less than five net tons, the owners of which may desire to operate them in coastwise trade. There is no indication that the statute intended this result, because the statute does not prohibit the granting of waivers to vessels of under five net tons. Accordingly, in this proposed rule, the Maritime Administration will be increasing the number of eligible vessels by removing the 5 net ton minimum requirement for its Small Passenger Vessel Waiver Program.
        Rulemaking Analysis and Notices
        Executive Order 12866 and DOT Regulatory Policies and Procedures
        This proposed rule is not significant under section 3(f) of Executive Order 12866, and as a consequence, OMB did not review the rule. This proposed rulemaking is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034; February 26, 1979). The costs and benefits associated with this rulemaking are considered to be so minimal that no further regulatory impact analysis is necessary. Vessels eligible for a waiver of the coastwise trade laws will be limited to foreign built or foreign re-built small passenger vessels and uninspected passenger vessels as defined by section 2101 of Title 46, United States Code. Additionally, vessels requested for consideration must be greater than three years old. We will not grant waivers in instances where such waivers will have an unduly adverse effect on U.S. vessel builders or U.S. businesses that use U.S. flag vessels. Under Title V, MARAD also has the authority to revoke coastwise endorsements under the limited circumstances in which a foreign-built or foreign-rebuilt passenger vessel, previously allowed into service, is deemed to have obtained such endorsement through fraud.
        Executive Order 13132
        We analyzed this rulemaking in accordance with the principles and criteria contained in E.O. 13132 (“Federalism”) and have determined that it does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. The regulations herein have no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. Therefore, MARAD did not consult with State and local officials because it was not necessary.
        Regulatory Flexibility Act

        The Regulatory Flexibility Act requires MARAD to assess the impact that regulations will have on small entities. After analysis of this proposed rule, MARAD certifies that this will not have a significant economic impact on a substantial number of small businesses. Although we expect many applicants for vessel waivers to be small businesses, we do not believe that the economic impact will be significant. This regulation allows MARAD to waive the U.S.-build and other requirements for eligible vessels and provides a small economic benefit to successful applicants. This regulation will only allow vessels to carry the statutory maximum of 12 passengers. As a consequence, MARAD estimates that a vessel owner who receives a waiver may earn a few hundred dollars per year for localized operations (geographic restrictions apply) such as whale watching and personalized fishing expeditions. Also, the economic impact of this rule is limited because it precludes vessel owners from participating in other economic activities such as carrying cargo and commercial fishing.
        Environmental Assessment
        This proposed rule would not significantly affect the environment because the small number and small size of vessels admitted to U.S. registry under this waiver program would have little or no effect on the environment. Accordingly, an Environmental Impact Statement is not required under the National Environmental Policy Act of 1969.
        Paperwork Reduction Act

        The Office of Management and Budget (OMB) has reviewed and approved the information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) The OMB approval number is 2133-0529.
        Unfunded Mandates Reform Act
        This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.
        Consultation and Coordination with Indian Tribal Governments
        MARAD believes that regulations evolving from this proposed rule would have no significant or unique effect on the communities of Indian tribal governments when analyzed under the principles and criteria contained in Executive Order 3084 (Consultation and Coordination with Indian Tribal Governments). Therefore, the funding and consultation requirements of this Executive Order would not apply.
        Regulation Identifier Number (RIN)
        A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
        Privacy Act

        Anyone is able to 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 DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

          List of Subjects in 46 CFR Part 388
          Administrative practice and procedure, Maritime carriers, Passenger vessels, Reporting and recordkeeping requirements.

        Accordingly, the Maritime Administration proposes to amend part 388, 46 CFR chapter II, subchapter J, as follows:

          PART 388—ADMINISTRATIVE WAIVERS OF THE COASTWISE TRADE LAWS
          1. The authority citation for part 388 continues to read as follows:

            Authority:
             46 App. U.S.C. 1114(b); Pub. L. 105-383, 112 Stat. 3445 (46 U.S.C. 12121): 49 CFR 1.66.

          2. In § 388.2, revise paragraph (c) to read as follows:

            § 388.2
            Definitions.

            (c) Eligible Vessel means a vessel that—is either a small passenger vessel or an uninspected passenger vessel that—
            (1) Was not built in the United States and is at least 3 years of age; or
            (2) If rebuilt, was rebuilt outside the United States at least 3 years before the certificate of documentation with appropriate endorsement if granted, would become effective.

            By Order of the Maritime Administrator
            Dated: January 21, 2010.
            Christine Gurland,
            Secretary, Maritime Administration.

      [FR Doc. 2010-1589 Filed 1-26-10; 8:45 am]
      BILLING CODE 4910-81-P


        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 2, 19 and 52
        [FAR Case 2006-005; Docket 2009-0014; Sequence 1]
        RIN 9000-AL18
        Federal Acquisition Regulation; FAR Case 2006-005, HUBZone Program Revisions

          AGENCIES:
          Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to implement revisions to the Small Business Administration's HUBZone Program as a result of revisions to the Small Business Administration's regulations.

          DATES:
          Interested parties should submit written comments to the FAR Secretariat on or before June 12, 2009 to be considered in the formulation of a final rule.

          ADDRESSES:
          Submit comments identified by FAR case 2006-005 by any of the following methods:
          • Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2006-005” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with FAR Case 2006-005. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “FAR Case 2006-005” on your attached document.
          • Fax: 202-501-4067.
          • Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405.

            Instructions: Please submit comments only and cite FAR case 2006-005 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

          FOR FURTHER INFORMATION CONTACT:
          Rhonda Cundiff, Procurement Analyst, at (202) 501-0044 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FAR case 2006-005.

        SUPPLEMENTARY INFORMATION:

        A. Background

        On May 24, 2004, the Small Business Administration (SBA) published a final rule in the Federal Register at 69 FR 29411, and on August 30, 2005, an interim rule at 70 FR 51243 amending its HUBZone regulations at 13 CFR Part 126 to implement the Small Business Reauthorization Act of 2000, the Consolidated Appropriations Act, 2005, and other various policy changes. This rule proposes to amend the FAR, as follows, to implement changes in the HUBZone regulations:
        • FAR 19.1303(d), Status as a qualified HUBZone small business concern; 52.219-3, Notice of Total HUBZone Set-Aside; and 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns, are revised to stipulate that to be eligible for a HUBZone contract, a HUBZone small business concern must be a HUBZone small business concern both at the time of its initial offer and at the time of contract award. SBA revised the HUBZone regulations to require HUBZone small business concerns to “certify,” at the time of their initial offers and again at the time of contract award, their HUBZone small business concern status. While the SBA regulations use the term “certify,” the certification is intended to be a “representation” as used in the FAR. Small business concern offerors are already required to “represent” their HUBZone small business concern status at the time of their initial offer.
        • FAR 52.219-3 and 52.219-4 are revised to add a requirement that the HUBZone concern provide to the contracting officer a copy of the notice required by 13 CFR 126.501 if material changes occur before award that could affect its HUBZone eligibility.
        • The performance of work requirements of sections 52.219-3 and 52.219-4 are revised to be consistent with the SBA HUBZone regulations. Alternate I would be used if there are not at least two HUBZones that can meet the 50 percent requirement. FAR 19.1308, Performance of work requirements (limitations on subcontracting), is also revised to reflect the changes in the performance of work requirements.

        • The definition of “HUBZone contract,” which is used in the SBA regulations, is added at section 2.101, Definitions.
        This rule also proposes to revise the FAR as follows:
        • Adds “qualified base closure areas” and “redesignated areas” to the list of HUBZone locations in the definition of “HUBZone” at section 2.101 as required by the Small Business Reauthorization Act of 2000 and the Consolidated Appropriations Act, 2005.
        • Adds “HUBZone joint ventures” to the list of affiliates that are controlled through contractual relationships at section 19.101, Explanation of terms, to recognize that HUBZone joint ventures, comprised of members who are individually small under the appropriate size standard, can qualify as HUBZone small business concerns when the aggregate total of the joint venture is small under the size standard for the NAICS code assigned to the contract, or alternative, when the aggregate total of the joint venture is not small, and then either: (1) for a procurement having a revenue-based size standard, the estimated contract value exceeds half the size standard corresponding to the NAICS code assigned to the contract; or (2) for a procurement having an employee-based size standard, the estimated contract value exceeds $10 million.
        • Adds a definition in Subpart 19.3, Determination of Small Business Status for Small Business Programs, for “interested party” and a notice that SBA will dismiss protests from offerors SBA determines are not “interested parties.”
        • Changes the protest procedures in 19.306, Protesting a firm's status as a HUBZone small business concern, to require protests to be “submitted” instead of “received” by certain specified dates consistent with SBA regulations.
        • At 19.800, General, removes an obsolete reference to priority of HUBZone 8(a) concerns, deleted from SBA regulations.
        • Adds options for obtaining information on HUBZone small business concerns at 19.1303, Status as a qualified HUBZone small business concern.
        • Changes the nonmanufacturer rule at 19.102, Size standards, paragraph (f)(8), 19.1303(e), 52.219-3(e), and 52.219-4(f) to be consistent with SBA HUBZone regulations.
        • Changes the HUBZone set-aside procedures at 19.1305 to business days, and changes 19.1305(e)(3), HUBZone set-aside procedures, to require SBA to file its formal appeal with the head of the agency.
        • Changes procedures for HUBZone sole source awards at 19.1306, HUBZone sole source awards, to be consistent with the HUBZone regulations.
        • Adds procedures at 19.1307, Price evaluation preference for HUBZone small business concerns, and 52.219-4 for how to make award when, after considering the price evaluation preference, an offer submitted by a qualified HUBZone is equal to an offer submitted by a large business.
        • Retitles clause 52.219-3, “Notice of Total HUBZone Set-Aside,” to “Notice of Total HUBZone Set-Aside or Sole Source Award,” and clarifies the clause prescription for sole source awards to implement the performance of the work requirements of the clause in sole source HUBZone awards.
        • In 52.219-3 and 52-219-4, adds a reference to SBA definitions on limitations on subcontracting.
        • Adds to 52.219-8(d), Utilization of Small Business Concerns, the requirement that the contractor shall confirm that a subcontractor is certified by SBA as a HUBZone small business by accessing the Central Contractor Registration database or contacting SBA. Additional language to 52.219-8(d) requires that for a competitive subcontract, the contractor must inform each unsuccessful subcontract offeror in writing of the name and location of the apparent successful offeror prior to award of the contract to the successful subcontract offer.
        In addition to these HUBZone small business changes, this rule proposes to amend the FAR as follows:
        • Changes the term “8(a) program” at 19.000, Scope of part to “8(a) business development program” to reflect the complete title of the program. To avoid confusion, however, other references to the 8(a) program are unchanged since nothing other than the title of the program is changed.
        • Deletes the terminology “acquisition and property sale assistance” from “joint venture—acquisition and property sales assistance” at 19.101 because the term “acquisition” added no meaning and “property sales” are beyond the scope of the FAR. The proposed rule also deletes the other reference to a “property sale” in the same paragraph.
        This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        B. Regulatory Flexibility Act

        On May 24, 2004, the Small Business Administration (SBA) published a final rule in the Federal Register at 69 FR 29411, and on August 30, 2005, an interim rule at 70 FR 51243 amending its HUBZone regulations at 13 CFR Part 126 to implement the Small Business Reauthorization Act of 2000, the Consolidated Appropriations Act, 2005, and other various policy changes. This rule proposes to revise the Federal Acquisition Regulation (FAR) in order to update the FAR to comply with the Small Business Administration's regulations as they pertain to acquisition.

        The changes 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.
        An Initial Regulatory Flexibility Analysis (IRFA) has been prepared and will be provided to the Chief Counsel for Advocacy for the Small Business Administration. The reason these changes may have a significant economic impact on a substantial number of small entities is because the small entities must comply with additional HUBZone requirements as discussed below. In addition, the proposed rule adds “qualified base closure areas” and “redesignated areas” to the list of HUBZone locations in the definition of “HUBZone”. This means that there will be more qualified HUBZone contractors competing for HUBZone contracts. The analysis is summarized as follows:
        The proposed FAR rule requires a HUBZone small business concern to be eligible for the HUBZone Program both at the time of its initial offer and at the time of contract award in addition to requiring the HUBZone concern to provide to the contracting officer a copy of the notice required by 13 CFR 126.501 if material changes occur before award that could affect its HUBZone eligibility. These requirements will eliminate some small businesses that are not eligible in both instances. The requirement for a HUBZone small business concern to provide to the contracting officer a copy of the notice required by 13 CFR 126.501 if material changes occur before award that could affect its HUBZone eligibility will eliminate those vendors that are no longer a HUBZone concern. This will result in those HUBZone concerns that are still eligible to compete having to compete only among other eligible HUBZone concerns, thus increasing their chances for award.

        In addition, the proposed rule impacts some small business concerns by revising the FAR to state that except for construction or service contracts, when the total value of the contract exceeds $25,000, a HUBZone small business concern nonmanufacturer must agree to furnish in performing the contract only end items manufactured or produced by HUBZone small business manufacturer concerns. In SBA's final rule dated August 30, 2005, SBA states that it is difficult to obtain a precise quantitative estimate of the impact these changes might have on small businesses. However, SBA estimates that 220 counties will be added as HUBZones a result of base closures.

        The FAR Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected FAR parts 2, 19 and 52 in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 U.S.C 601, et seq. (FAR case 2006-005), in correspondence.
        C. Paperwork Reduction Act

        The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35, et
          seq.

          List of Subjects in 48 CFR Parts 2, 19 and 52
          Government procurement.

          Dated: March 20, 2009.
          Al Matera,
          Director, Office of Acquisition Policy.

        Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 19 and 52 as set forth below:
        1. The authority citation for 48 CFR parts 2, 19 and 52 continues to read as follows:

          Authority:
           40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

          PART 2—DEFINITIONS OF WORDS AND TERMS
          2. Amend section 2.101 in paragraph (b)(2) by revising the definition “HUBZone”; adding, in alphabetical order, the definition “HUBZone contract”; and adding a second sentence to the definition “HUBZone small business concern”. The revised and added text read as follows:

            2.101
            Definitions.

            (b) * * *
            (2) * * *

              HUBZone means a historically underutilized business zone that is an area located within one or more qualified census tracts, qualified nonmetropolitan counties, lands within the external boundaries of an Indian reservation, qualified base closure areas, or redesignated areas, as defined in 13 CFR 126.103.

              HUBZone contract means a contract awarded to a “HUBZone small business” concern through any of the following procurement methods:
            (1) A sole source award to a HUBZone small business concern;
            (2) Set-aside awards based on competition restricted to HUBZone small business concerns; or
            (3) Awards to HUBZone small business concerns through full and open competition after a price evaluation preference in favor of HUBZone small business concerns.

              HUBZone small business concern * * * 13 CFR 126.103.

          PART 19—SMALL BUSINESS PROGRAMS
          3. Amend section 19.000 by revising paragraph (a)(6) to read as follows:

            19.000
            Scope of part.
            (a) * * *
            (6) The “8(a)” business development program (hereafter referred to as 8(a) program), under which agencies contract with the SBA for goods or services to be furnished under a subcontract by a small disadvantaged business concern;

            4. Amend section 19.101, in the definition “Affiliates” by redesignating paragraphs (7)(ii) through (7)(v) as (7)(iii) through (7)(vi), respectively, and adding a new paragraph (7)(ii); and revising the paragraph heading and first sentence of the newly redesignated paragraph (7)(iii) to read as follows:

            19.101
            Explanation of terms.

            Affiliates. * * *
            (7) * * *
            (ii) HUBZone joint venture. A HUBZone joint venture of two or more HUBZone small business concerns may submit an offer for a HUBZone contract as long as each concern is small under the size standard corresponding to the NAICS code assigned to the requirement, provided one of the following conditions apply:
            (A) The aggregate total of the joint venture is small under the size standard corresponding to the NAICS code assigned to the contract.
            (B) The aggregate total of the joint venture is not small under the size standard corresponding to the NAICS code assigned to the contract and either—
            (1) For a revenue-based size standard, the estimated contract value exceeds half the size standard corresponding to the NAICS code assigned to the contract; or
            (2) For an employee-based size standard, the estimated contract value exceeds $10 million.
            (iii) Joint venture. Concerns submitting offers on a particular acquisition as joint ventures are considered as affiliated and controlling or having the power to control each other with regard to performance of the contract. * * *

            5. Amend section 19.102 by adding paragraph (f)(8) to read as follows:

            19.102
            Size standards.

            (f) * * *
            (8) For non-manufacturer rules pertaining to HUBZone contracts, see 19.1303(e).

            6. Revise section 19.306 to read as follows:

            19.306
            Protesting a firm's status as a HUBZone small business concern.
            (a) Definition as used in this section—

              Interested party has the meaning given in 13 CFR 126.103.
            (b) HUBZone Small Business Status. (1) For sole source acquisitions, the SBA or the contracting officer may protest the apparently successful offeror's HUBZone small business concern status.
            (2) For all other acquisitions, an offeror that is an interested party, the contracting officer, or the SBA may protest the apparently successful offeror's HUBZone small business concern status.
            (c) Protests relating to whether a HUBZone small business concern is a small business for purposes of any Federal program are subject to the procedures of subpart 19.3. Protests relating to small business size status for the acquisition and the HUBZone qualifying requirements will be processed concurrently by SBA.

            (d) All protests must be in writing and must state all specific grounds for the protest. Assertions that a protested concern is not a qualified HUBZone small business concern, without setting forth specific facts or allegations, are insufficient. An offeror must submit its protest to the contracting officer. The contracting officer and the SBA must submit protests to SBA's Associate Administrator for the HUBZone Program (AA/HUB).
            (e) The protest of an offeror that is an interested party must be submitted by close of business on the fifth business day after bid opening (in sealed bid acquisitions) or by close of business on the fifth business day after notification by the contracting officer of the apparently successful offeror (in negotiated acquisitions). Any protest submitted after these time limits is untimely, unless it is submitted by the SBA or the contracting officer. Any protest received prior to bid opening or notification of intended award, whichever applies, is premature and shall be returned to the protester.
            (f) Except for premature protests, the contracting officer shall forward all protests received, notwithstanding whether the contracting officer believes that the protest is not sufficiently specific, timely, or submitted by an interested party. The contracting officer shall also forward a referral letter with the information required by 13 CFR 126.801(e).
            (g) Protests may be submitted in person or by facsimile, express delivery service, or U.S. mail (postmarked within the applicable time period) to: Associate Administrator/Historically Underutilized Business, AA/HUB, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416; Fax (202) 205-7167. The AA/HUB will notify the protester and the contracting officer that the protest was received and indicate whether the protest will be processed or dismissed for lack of timeliness or specificity. A protest will be dismissed if SBA determines the protester is not an interested party.
            (h) SBA will determine the HUBZone status of the protested HUBZone small business concern within 15 business days after receipt of a protest. If SBA does not contact the contracting officer within 15 business days, the contracting officer may award the contract to the apparently successful offeror, unless the contracting officer has granted SBA an extension. The contracting officer may award the contract after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest.
            (i) SBA will notify the contracting officer, the protester, and the protested concern of its determination. The determination is effective immediately and is final unless overturned on appeal by SBA's Associate Deputy Administrator for Government Contracting and Business Development (ADA/GC&BD).
            (j) The protested HUBZone small business concern, the protester, or the contracting officer may file appeals of protest determinations with SBA's ADA/GC&BD. The ADA/GC&BD must receive the appeal no later than 5 business days after the date of receipt of the protest determination. SBA will dismiss any appeal received after the 5-day period.
            (k) The appeal must be in writing. The appeal must identify the protest determination being appealed and must set forth a full and specific statement as to why the decision is erroneous or what significant fact the AA/HUB failed to consider.
            (l) The party appealing the decision must provide notice of the appeal to the contracting officer and either the protested HUBZone small business concern or the original protester, as appropriate. SBA will not consider additional information or changed circumstances that were not disclosed at the time of the AA/HUB's decision or that are based on disagreement with the findings and conclusions contained in the determination.
            (m) The ADA/GC&BD will make its decision within 5 business days of the receipt of the appeal, if practicable, and will base its decision only on the information and documentation in the protest record as supplemented by the appeal. SBA will provide a copy of the decision to the contracting officer, the protester, and the protested HUBZone small business concern. The SBA decision, if received before award, will apply to the pending acquisition. SBA rulings received after award will not apply to that acquisition. The ADA/GC&BD's decision is the final decision.
            7. Amend section 19.703 by revising paragraph (d)(1)(i) to read as follows:

            19.703
            Eligibility requirements for participating in the program.

            (d) * * *
            (1) * * *
            (i) HUBZone web page at http://dsbs.sba.gov/dsbs/dsp_searchhubzone.cfm or https://eweb1.sba.gov/hubzone/internet/general/approved-firms.cfm;

            19.800
            [Amended]
            8. Amend section 19.800 by removing the second sentence of paragraph (e).

            19.803
            [Amended]
            9. Amend section 19.803 by removing from the end of paragraph (c) “(but see 19.800(e))”.

            19.804-3
            [Amended]
            10. Amend section 19.804-3 by removing from the end of paragraph (a) “(AA)/8(a)BD” and adding “AA/BD” in its place.

            19.805-1
            [Amended]
            11. Amend section 19.805-1 by removing from paragraph (d) “(AA/8(a)BD)” each time it appears and adding “AA/BD” in its place.
            12. Amend section 19.1301 by revising paragraph (a) to read as follows:

            19.1301
            General.
            (a) The Historically Underutilized Business Zone (HUBZone) Act of 1997 (15 U.S.C. 631 note) created the HUBZone Program.

            13. Amend section 19.1303 by revising the section heading and paragraphs (b), (c), and (d) and adding paragraph (e). The revised and added text read as follows:

            19.1303
            Status as a HUBZone small business concern.

            (b) If the SBA determines that a concern is a HUBZone small business concern, it will issue a certification to that effect and will add the concern to the List of Qualified HUBZone Small Business Concerns https://eweb1.sba.gov/hubzone/internet/general/approved-firms.cfm. Only firms on the list are HUBZone small business concerns, eligible for HUBZone preferences. HUBZone preferences apply without regard to the place of performance. Information on HUBZone small business concerns can also be obtained at http://dsbs.sba.gov/dsbs/dsp_dsbs.cfm or by writing to the Associate Administrator for the HUBZone Program (AA/HUB) at U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416 or at hubzone@sba.gov.
            (c) A joint venture (see 19.101) may be considered a HUBZone small business concern if it meets the criteria in the explanation of affiliates in 19.101.
            (d) To be eligible for a HUBZone contract under this section, a HUBZone small business concern must be a HUBZone small business concern both at the time of its initial offer and at the time of contract award.

            (e) A HUBZone small business concern may submit an offer for supplies as a nonmanufacturer if it meets the requirements of the nonmanufacturer rule set forth at 13 CFR 121.406(b)(1) and if the small manufacturer providing the end item is also a HUBZone small business concern.

            (1) There are no waivers to the nonmanufacturer rule for HUBZone contracts.
            (2) For HUBZone contracts at or below $25,000 in total value, a HUBZone small business concern may supply the end item of any manufacturer, including a large business, so long as the product acquired is manufactured or produced in the United States.
            14. Amend section 19.1305 by removing from paragraph (a) “A participating agency” and adding “The” in its place; and revising paragraphs (c) and (e) to read as follows:

            19.1305
            HUBZone set-aside procedures.

            (c) A contracting officer may set aside acquisitions exceeding the micro-purchase threshold that do not exceed the simplified acquisition threshold for competition restricted to HUBZone small business concerns at the sole discretion of the contracting officer, provided the requirements of paragraph (b) of this section can be satisfied.

            (e) The procedures at 19.202-1 and, except for acquisitions not exceeding the simplified acquisition threshold, at 19.402 apply to this section.
            (1) When the SBA intends to appeal a contracting officer's decision to reject a recommendation of the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)) to set aside an acquisition for competition restricted to HUBZone small business concerns, the SBA procurement center representative shall notify the contracting officer, in writing, of its intent within 5 business days of receiving the contracting officer's notice of rejection.
            (2) Upon receipt of notice of SBA's intent to appeal, the contracting officer shall suspend action on the acquisition unless the head of the contracting activity makes a written determination that urgent and compelling circumstances, which significantly affect the interests of the Government, exist.
            (3) Within 15 business days of SBA's notification to the contracting officer, SBA must file its formal appeal with the head of the agency, or the appeal will be deemed withdrawn. The head of the agency shall reply to SBA within 15 business days of receiving the appeal. The decision of the head of the agency shall be final.
            15. Amend section 19.1306 by revising paragraph (a) to read as follows:

            19.1306
            HUBZone sole source awards.
            (a) An agency contracting officer may award contracts to HUBZone small business concerns on a sole source basis without considering small business set-asides (see Subpart 19.5), provided none of the exclusions at 19.1304 apply and—
            (1) The contracting officer does not have a reasonable expectation that offers would be received from two or more HUBZone small business concerns;
            (2) The anticipated price of the contract, including options, will not exceed—
            (i) $5.5 million for a requirement within the NAICS codes for manufacturing; or
            (ii) $3.5 million for a requirement within all other NAICS codes;
            (3) The acquisition is greater than the simplified acquisition threshold (see part 13);
            (4) The HUBZone small business concern has been determined to be a responsible contractor with respect to performance; and
            (5) Award can be made at a fair and reasonable price.

            16. Amend section 19.307 by adding paragraph (e) to read as follows:

            19.1307
            Price evaluation preference for HUBZone small business concerns.

            (e) When the two highest rated offerors are a HUBZone small business concern and a large business, and the evaluated offer of the HUBZone small business concern is equal to the evaluated offer of the large business after considering the price evaluation preference, the contracting officer shall award the contract to the HUBZone small business concern.

            19.1308
            [Redesignated as 19.1309]
            17. Redesignate section 19.1308 as 19.1309; and add a new section 19.1308 to read as follows:

            19.1308
            Performance of work requirements (limitations on subcontracting).
            (a) Before issuing a solicitation for general construction or construction by special trade contractors, the contracting officer must determine if at least two HUBZone small business concerns can individually perform at least 50 percent of the cost of contract performance incurred for personnel, using its own employees or subcontract employees of other HUBZone small business concerns. If not, the clause at 52.219-3 Notice of Total HUBZone Set-Aside or Sole Source Award, or 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns, shall be used, as applicable, with its Alternate I (see 19.1309).
            (b) See 13 CFR 125.6 for definitions of terms used in paragraph (a) of this section.
            18. Revise the newly designated section 19.1309 to read as follows:

            19.1309
            Contract clauses.
            (a) The contracting officer shall insert the clause 52.219-3, Notice of Total HUBZone Set-Aside or Sole Source Award, in solicitations and contracts for acquisitions that are set aside for, or awarded on a sole source basis to, HUBZone small business concerns under 19.1305 or 19.1306. The contracting officer shall insert the clause with its Alternate I if market research indicates that there are not at least two HUBZone small business concerns that can meet the requirements of 19.1308.
            (b) The contracting officer shall insert the clause at FAR 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns, in solicitations and contracts for acquisitions conducted using full and open competition. The clause shall not be used in acquisitions that do not exceed the simplified acquisition threshold. The contracting officer shall insert the clause with its Alternate I if market research indicates that there are not at least two HUBZone small business concerns that can meet the requirements of 19.1308.

          PART 33—PROTESTS, DISPUTES, AND APPEALS
          19. Amend section 33.102 by revising the second sentence of paragraph (a) to read as follows:

            33.102
            General.
            (a) * * * (See 19.302 for protests of small business status, 19.305 for protests of disadvantaged business status, 19.306 for protests of HUBZone small business status, and 19.307 for protests of service-disabled veteran-owned small business status.

          PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          20. Amend section 52.212-3 by revising the date of the provision; removing from paragraph (c)(10)(i) the word “change” and adding “changes” in its place and removing the word “has” and adding “have” in its place; and revising paragraph (c)(10)(ii). The revised text reads as follows:

            52.212-3
            Offeror Representations and Certifications—Commercial Items.

            Offeror Representations and Certifications—Commercial Items (Date)

              (c) * * *
              (10) * * *

              (ii) It ☐ is, ☐ is not a HUBZone joint venture that complies with the requirements of 13 CFR Part 126, and the representation in paragraph (c)(10)(i) of this provision is accurate for each HUBZone small business concern participating in the HUBZone joint venture. [The offeror shall enter the names of each of the HUBZone small business concerns participating in the HUBZone joint venture: __________.] Each HUBZone small business concern participating in the HUBZone joint venture shall submit a separate signed copy of the HUBZone representation.

            (End of provision)
            21. Amend section 52.212-5 by revising the date of the clause, paragraphs (b)(3), (b)(4), and (b)(8); and removing from paragraph (e)(1)(ii) “Feb 2009” and adding “(Date)” in its place. The revised text reads as follows:

            52.212-5
            Contract Terms and Conditions required to implement Statutes or Executive Orders—Commercial items.

            CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—COMMERCIAL ITEMS (DATE)

              (b) * * *
              __(3) 52.219-3, Notice of Total HUBZone Set-Aside or Sole Source Award (Date) (15 U.S.C. 657a).
              __(4) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Date) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a).

              ___(8) 52.219-8, Utilization of Small Business Concerns (Date) (15 U.S.C. 637(d)(2) and (3)).

            (End of clause)
            22. Amend section 52.213-4 by revising the date of the clause and paragraph (a)(2)(vi) to read as follows:

            52.213-4
            Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items).

            TERMS AND CONDITIONS—SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL ITEMS) (DATE)

              (a) * * *
              (2) * * *
              (vi) 52.244-6, Subcontracts for Commercial Items (Date).

            (End of clause)
            23. Amend section 52.219-1 by revising the date of the clause and paragraphs (b)(6)(i) and (b)(6)(ii) to read as follows:

            52.219-1
            Small Business Program Representations.

            SMALL BUSINESS PROGRAM REPRESENTATIONS (DATE)

              (b) * * *
              (6) * * *
              (i) It ☐ is, ☐ is not a HUBZone small business concern listed, on the date of this representation, on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration; and no material changes in ownership and control, principal office, or HUBZone employee percentage have occurred since it was certified in accordance with 13 CFR Part 126; and

              (ii) It ☐ is, ☐ is not a HUBZone joint venture that complies with the requirements of 13 CFR Part 126, and the representation in paragraph (b)(6)(i) of this provision is accurate for each HUBZone small business concern participating in the HUBZone joint venture. [The offeror shall enter the names of each of the HUBZone small business concerns participating in the HUBZone joint venture: __________.] Each HUBZone small business concern participating in the HUBZone joint venture shall submit a separate signed copy of the HUBZone representation.

            24. Revise section 52.219-3 to read as follows:

            52.219-3
            Notice of Total HUBZone Set-Aside or Sole Source Award.
            As prescribed in 19.1309(a), insert the following clause:
            NOTICE OF TOTAL HUBZONE SET-ASIDE OR SOLE SOURCE AWARD (DATE)

              (a) Definitions. See 13 CFR 125.6(e) for definitions of terms used in paragraph (c).
              (b) General. (1) Offers are solicited only from HUBZone small business concerns. Offers received from concerns that are not HUBZone small business concerns will not be considered.
              (2) Any award resulting from this solicitation will be made to a HUBZone small business concern.
              (c) Agreement. A HUBZone small business concern agrees that, in the performance of the contract, in the case of a contract for—
              (1) Services (except construction), at least 50 percent of the cost of personnel for contract performance will be spent for employees of the concern or employees of other HUBZone small business concerns;
              (2) Supplies (other than acquisition from a nonmanufacturer of the supplies), at least 50 percent of the cost of manufacturing, excluding the cost of materials, will be performed by the concern or other HUBZone small business concerns;
              (3) General construction, at least 50 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees or on a combination of the concern's employees and employees of HUBZone small business concern subcontractors. At least 15 percent of the cost of contract performance incurred for personnel will be spent on the concern's employees. No more than 50 percent of the cost of contract performance incurred for personnel will be subcontracted to concerns that are not HUBZone small business concerns; or
              (4) Construction by special trade contractors, at least 50 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees or on a combination of the concern's employees and employees of HUBZone small business concern subcontractors. At least 25 percent of the cost of contract performance incurred for personnel will be spent on the concern's employees. No more than 50 percent of the cost of contract performance incurred for personnel will be subcontracted to concerns that are not HUBZone small business concerns.
              (d) A HUBZone joint venture agrees that, in the performance of the contract, the applicable percentage specified in paragraph (c) of this clause will be performed by the aggregate of the HUBZone small business participants.
              (e)(1) When the total value of the contract exceeds $25,000, a HUBZone small business concern nonmanufacturer agrees to furnish in performing this contract only end items manufactured or produced by HUBZone small business concern manufacturers.
              (2) When the total value of the contract is equal to or less than $25,000, a HUBZone small business concern nonmanufacturer may provide end items manufactured by other than a HUBZone small business concern manufacturer provided the end items are produced or manufactured in the United States.
              (3) Paragraphs 1 and 2 do not apply in connection with construction or service contracts.
              (f) Notice. If this solicitation has been set-aside for HUBZone small business concerns or the price evaluation preference for HUBZone small business concerns applies, the HUBZone small business offeror acknowledges the requirement that a prospective HUBZone awardee must be a HUBZone small business concern at the time of award of this contract. The HUBZone offeror shall provide the Contracting Officer a copy of the notice required by 13 CFR 126.501 if material changes occur before contract award that could affect its HUBZone eligibility. If the apparently successful HUBZone offeror is not a HUBZone small business concern at the time of award of this contract, the Contracting Officer will proceed to award to the next otherwise successful HUBZone small business concern or other offeror.

            (End of Clause)

              Alternate I (Date). As prescribed in 19.1309(a), substitute the following paragraphs (c)(3) and (c)(4) for paragraphs (c)(3) and (c)(4) of the basic clause:

              (3) General construction, at least 15 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees; or
              (4) Construction by special trade contractors, at least 25 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees.

            25. Amend section 52.219-4 by—
            a. Revising the prescription, date of the clause, and paragraph (a);
            b. Adding paragraph (b)(4);
            c. Removing from paragraph (c) “paragraph (d) of” and adding “paragraphs (d) and (e) of” in its place;
            d. Revising paragraphs (d)(3), (d)(4), (e) and (f);
            e. Adding paragraph (g) and Alternate I.
            The revised and added text reads as follows:

            52.219-4
            Notice of Price Evaluation Preference for HUBZone Small Business Concerns.
            As prescribed in 19.1309(b), insert the following clause:
            NOTICE OF PRICE EVALUATION PREFERENCE FOR HUBZONE SMALL BUSINESS CONCERNS (DATE)

              (a) Definitions. See 13 CFR 125.6(e) for definitions of terms used in paragraph (d).
              (b) * * *
              (4) When the two highest rated offerors are a HUBZone small business concern and a large business, and the evaluated offer of the HUBZone small business concern is equal to the evaluated offer of the large business after considering the price evaluation preference, award will be made to the HUBZone small business concern.
              (d) * * *
              (3) General construction, at least 50 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees or on a combination of the concern's employees and employees of HUBZone small business concern subcontractors. At least 15 percent of the cost of contract performance incurred for personnel will be spent on the concern's employees. No more than 50 percent of the cost of contract performance incurred for personnel will be subcontracted to concerns that are not HUBZone small business concerns; or
              (4) Construction by special trade contractors, at least 50 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees or on a combination of the concern's employees and employees of HUBZone small business concern subcontractors. At least 25 percent of the cost of contract performance incurred for personnel will be spent on the concern's employees. No more than 50 percent of the cost of contract performance incurred for personnel will be subcontracted to concerns that are not HUBZone small business concerns.
              (e) A HUBZone joint venture agrees that the aggregate of the HUBZone small business concerns to the joint venture, not each concern separately, will perform the applicable percentage of work requirements.
              (f)(1) When the total value of the contract exceeds $25,000, a HUBZone small business concern nonmanufacturer agrees to furnish in performing this contract only end items manufactured or produced by HUBZone small business concern manufacturers.
              (2) When the total value of the contract is equal to or less than $25,000, a HUBZone small business concern nonmanufacturer may provide end items manufactured by other than a HUBZone small business concern manufacturer provided the end items are produced or manufactured in the United States.
              (3) Paragraphs 1 and 2 do not apply in connection with construction or service contracts.
              (g) Notice. If this solicitation has been set aside for HUBZone small business concerns or the price evaluation preference for HUBZone small business concerns applies, the HUBZone small business offeror acknowledges the requirement that a prospective HUBZone awardee must be a HUBZone small business concern at the time of award of this contract. The HUBZone offeror shall provide the Contracting Officer a copy of the notice required by 13 CFR 126.501 if material changes occur before contract award that could affect its HUBZone eligibility. If the apparently successful HUBZone offeror is not a HUBZone small business concern at the time of award of this contract, the Contracting Officer will proceed to award to the next otherwise successful HUBZone small business concern or other offeror.

            (End of Clause)

              Alternate I (Date). As prescribed in 19.1309(b), substitute the following paragraphs (d)(3) and (d)(4) for paragraphs (d)(3) and (d)(4) of the basic clause:

              (3) General construction, at least 15 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees; or
              (4) Construction by special trade contractors, at least 25 percent of the cost of the contract performance incurred for personnel will be spent on the concern's employees.

            26. Amend section 52.219-8 by revising the date of the clause and paragraph (d) to read as follows:

            52.219-8
            Utilization of Small Business Concerns.

            UTILIZATION OF SMALL BUSINESS CONCERNS (DATE)

              (d)(1) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as a small business concern, a veteran-owned small business concern, a service-disabled veteran-owned small business concern, a small disadvantaged business concern, or a women-owned small business concern.
              (2) The Contractor shall confirm that a subcontractor representing itself as a HUBZone small business concern is certified by SBA as a HUBZone small business concern by accessing the Central Contractor Registration (CCR) database or by contacting the SBA. Options for contacting the SBA include—
              (i) HUBZone web page at http://dsbs.sba.gov/dsbs/dsp_searchhubzone.cfm;
              (ii) In writing to the—AA/HUB, U.S. Small Business Administration, 409 3rd Street, SW., Washington DC 20416; or
              (iii) E-mail at hubzone@sba.gov.
              (3) Upon determination of the successful subcontract offeror for a competitive subcontract, the Contractor must inform each unsuccessful subcontract offeror in writing of the name and location of the apparent successful offeror prior to award of the contract.

            (End of clause)

            52.244-6
            [Amended]
            27. Amend section 52.244-6 by removing from the clause heading “(Dec 2008)” and adding “(Date)” in its place; and by removing from paragraph (c)(1)(ii) “(May 2004)” and adding “(Date)” in its place.

      [FR Doc. E9-8318 Filed 4-10-09; 8:45 am]
      BILLING CODE 6820-EP-P


        DEPARTMENT OF HOMELAND SECURITY
        6 CFR Chapter I
        8 CFR Chapter I
        19 CFR Chapter I
        33 CFR Chapter I
        44 CFR Chapter I
        46 CFR Chapters I and III
        49 CFR Chapter XII
        [Docket No. DHS-2014-0006]
        Retrospective Review of Existing Regulations; Request for Public Input

          AGENCY:
          Office of the General Counsel, DHS.

          ACTION:
          Notice and request for comments.

          SUMMARY:
          The Department of Homeland Security (Department or DHS) is seeking comments from the public on specific existing significant DHS rules that the Department should consider as candidates for modification, streamlining, expansion, or repeal. These efforts will help DHS ensure that its regulations contain necessary, properly tailored, and up-to-date requirements that effectively achieve regulatory objectives without imposing unwarranted costs.
          DHS is seeking this input pursuant to the process identified in DHS's Final Plan for the Retrospective Review of Existing Regulations. According to the Final Plan, DHS will initiate its retrospective review process, on a three-year cycle, by seeking input from the public. The most helpful input will identify specific regulations and include actionable data supporting the nomination of specific regulations for retrospective review.

          DATES:
          Written comments are requested on or before March 28, 2014. Late-filed comments will be considered to the extent practicable.

          ADDRESSES:

          You may submit comments, identified by docket number DHS-2014-0006, through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Charlotte Skey, Senior Regulatory Economist, Office of the General Counsel, U.S. Department of Homeland Security. Email: Regulatory.Review@dhs.gov.

        SUPPLEMENTARY INFORMATION:

        I. Public Participation

        Interested persons are invited to comment on this notice by submitting written data, views, or arguments using the method identified in the ADDRESSES section.

          Instructions: All submissions must include the agency name and docket number for this notice. All comments received will be posted without change to http://www.regulations.gov.

          Docket: For access to the docket to read background documents or comments, go to http://www.regulations.gov.

        II. Background
        On January 18, 2011, the President issued Executive Order 13563, “Improving Regulation and Regulatory Review,” to ensure that Federal regulations seek more affordable, less intrusive means to achieve policy goals and that agencies give careful consideration to the benefits and costs of those regulations. 76 FR 3821. The Executive Order required each Executive Branch agency to develop a preliminary plan to periodically review its existing regulations to determine whether any regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives.

        DHS's approach to conducting retrospective review focuses on public openness and transparency and on the critical role of public input in conducting retrospective review. To that end, DHS published a notice and request for comments in the Federal Register on March 14, 2011. 76 FR 13526. In that notice, DHS solicited public input on how DHS should structure its retrospective review and which DHS rules would benefit from retrospective review. On June 6, 2011, DHS published a notice of availability; request for comments announcing the availability and seeking comment on its Preliminary Plan for the Retrospective Review of Existing Regulations. 76 FR 32331. DHS considered this public input as it developed a Final Plan.

        On August 22, 2011, DHS issued its Final Plan for the Retrospective Review of Existing Regulations (Final Plan or DHS Final Plan). The DHS Final Plan is available online at http://www.dhs.gov/xlibrary/assets/dhs-ogc-final-retrospective-review-plan-8-22-11-final.pdf. The Final Plan established a process for identifying regulations that may be obsolete, unnecessary, unjustified, excessively burdensome, or counterproductive. Under the Final Plan, DHS (and/or a DHS component) will publish a notice in the Federal Register every three years seeking public input regarding the regulations that should be subject to retrospective review. The previous Federal Register notice from DHS seeking such public input was published in 2011. 76 FR 13526. The notice published today in the Federal Register requesting nominations for additional regulations that should be subject to retrospective review fulfills the DHS commitment to seek public input via the Federal Register on a three-year cycle.

        It is important to note that DHS continually evaluates its regulatory program for rules that are candidates for retrospective review. DHS does so through legally mandated retrospective review requirements (e.g., Unified Agenda reviews and reviews under section 610 of the Regulatory Flexibility Act) and through other informal and long-established mechanisms (e.g., use of Advisory Councils, feedback from DHS field personnel, input from internal working groups, and outreach to regulated entities). This Federal Register notice supplements these existing extensive DHS retrospective review efforts.1

            1 Twice a year, DHS posts a progress report on the DHS Web site; the report provides the status of DHS regulations currently under retrospective review. The most recent progress report was published in July 2013 and is available on the DHS Web site at http://www.dhs.gov/latest-progress.

        II. DHS's Regulatory Responsibility
        DHS's mission is to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards. The Department carries out its mission through the Office of the Secretary and 28 components, including the following seven operational components: U.S. Citizenship and Immigration Services, U.S. Coast Guard, U.S. Customs and Border Protection, Federal Emergency Management Agency, U.S. Immigration and Customs Enforcement, U.S. Secret Service, and Transportation Security Administration.
        Our mission gives us five main areas of responsibility: (1) Prevent terrorism and enhance security; (2) secure and manage our borders; (3) enforce and administer our immigration laws; (4) safeguard and secure cyberspace; and (5) ensure resilience to disasters. To further these areas, DHS has responsibility for a broad range of regulations. For example, to secure and manage our borders, DHS regulates people and goods entering and exiting the United States. DHS, to combat terrorism, regulates aviation security, high-risk chemical facilities, and infrastructure protection. DHS also issues regulations to administer immigration and citizenship benefits as well as regulations covering maritime safety and environmental protection. Finally, DHS promulgates a wide range of regulations concerning disaster preparedness, response, and recovery.
        III. Request for Input
        A. Importance of Public Feedback
        A central tenet of the DHS Final Plan is the critical and essential role of public input in driving and focusing DHS retrospective review. Because the impacts and effects of a rule tend to be widely dispersed in society, members of the public—especially the regulated entities of our rulemakings—are likely to have useful information, data, and perspectives on the benefits and burdens of our existing regulations. Given this importance of public input, the primary factor for rule section in DHS retrospective review is public feedback.
        B. Maximizing the Value of Public Feedback
        This notice contains a list of questions, the answers to which will assist DHS in identifying those regulations that may benefit from DHS retrospective review. DHS encourages public comment on these questions and seeks any other data commenters believe are relevant to DHS's retrospective review efforts. The DHS Final Plan provides instruction on the type of feedback that is most useful to the Department:

          DHS will afford significantly greater weight to feedback that identifies specific regulations, includes actionable data, or provides viable alternatives that meet statutory obligations and regulatory objectives. Feedback that simply states that a stakeholder feels strongly that DHS should change a regulation, but does not contain specific information on how the proposed change would impact the costs and benefits of the regulation, is much less useful to DHS. DHS is looking for new information and new economic data to support any proposed changes. (emphasis added)

        We highlight a few of those points here, noting that comments that will be most useful to DHS are those that are guided by the principles below. Commenters should consider these principles as they answer and respond to the questions in this notice.
        • Commenters should identify, with specificity, the regulation at issue, providing the Code of Federal Regulation (CFR) cite where available.

        • Commenters should provide, in as much detail as possible, an explanation why a regulation should be modified, streamlined, expanded, or repealed, as well as specific suggestions of ways the Department can better achieve its regulatory objectives.
        • Commenters should provide specific data that document the costs, burdens, and benefits of existing requirements. Commenters might also address how DHS can best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations and whether there are existing sources of data that DHS can use to evaluate the post-promulgation effects of its regulations over time.
        • Particularly where comments relate to a rule's costs or benefits, comments will be most useful if there are data and experience under the rule available to ascertain the rule's actual impact. For that reason, we encourage the public to emphasize those rules that have been in effect for a sufficient amount of time to warrant a fair evaluation.
        • Comments that rehash debates over recently issued rules will be less useful.
        C. List of Questions for Commenters
        The below nonexhaustive list of questions is meant to assist members of the public in the formulation of comments and is not intended to restrict the issues that commenters may address:
        (1) Are there regulations that simply make no sense or have become unnecessary, ineffective, or ill advised and, if so, what are they? Are there regulations that can simply be repealed without impairing the Department's regulatory programs and, if so, what are they?
        (2) Are there regulations that have become outdated and, if so, how can they be modernized to better accomplish their regulatory objectives?
        (3) Are there regulations that are still necessary, but have not operated as well as expected such that a modified, stronger, or slightly different approach is justified?
        (4) Does the Department currently collect information that it does not need or effectively use to achieve regulatory objectives?
        (5) Are there regulations that are unnecessarily complicated or could be streamlined to achieve regulatory objectives in more efficient ways? If so, how can they be streamlined and/or made less complicated?
        (6) Are there regulations that have been overtaken by technological developments? Can new technologies be leveraged to modify, streamline, or do away with existing regulatory requirements?
        (7) Are there any Departmental regulations that are not tailored to impose the least burden on society, consistent with achieving the regulatory objectives?
        (8) How can the Department best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations? Are there existing sources of data the Department can use to evaluate the post-promulgation effects of regulations over time?
        (9) Are there regulations that are working well that can be expanded or used as a model to fill gaps in other DHS regulatory programs?
        (10) Are there any regulations that create difficulty because of duplication, overlap, or inconsistency of requirements?
        The Department notes that this notice is issued solely for information and program planning purposes. Responses to this notice do not bind DHS to any further actions related to the response.

          Christina E. McDonald,
          Associate General Counsel for Regulatory Affairs.

      [FR Doc. 2014-04116 Filed 2-25-14; 8:45 am]
      BILLING CODE 9110-9B-P