14480 Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations 

77 40 CFR 1501.8(b), (c). 

of an applicant, and allow agencies to 

set time limits at the request of other 

interested parties.77 It is entirely 

consistent with the purposes and goals 

of NEPA and with the CEQ Regulations 

for agencies to consider the same factors 

and determine appropriate time limits 

for the various phases of the EA process 

when requested by applicants, Tribes, 

States, local agencies, or members of the 

public. 

Conclusion 

This guidance highlights for agencies 

preparing either an EA or an EIS the 

ability to employ all the methods 

provided in the CEQ regulations to 

prepare concise and timely NEPA 

reviews. Using methods such as 

integrating planning and environmental 

reviews and permitting, coordinating 

multi-agency or multi-governmental 

reviews and approvals, and setting 

schedules for completing the 

environmental review will assist 

agencies in preparing efficient and 

timely EAs and EISs consistent with 

legal precedent and agency NEPA 

experience and practice. 

Nancy H. Sutley, 

Chair, Council on Environmental Quality. 

[FR Doc. 2012–5812 Filed 3–9–12; 8:45 am] 

BILLING CODE 3225–F2–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 212 

RIN 0750–AH61 

Defense Federal Acquisition 

Regulation Supplement: Commercial 

Determination Approval (DFARS Case 

2011–D041) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is issuing a final rule 

amending the Defense Federal 

Acquisition Regulation Supplement to 

require higher-level approval for 

commercial item determinations for 

acquisitions exceeding $1 million when 

the determination is based on ‘‘of a 

type’’ or ‘‘offered for sale’’ language 

contained in the definition of 

commercial item. The rule also clarifies 

approval requirements for 

determinations for acquisitions of 

services exceeding $1 million using part 

12 procedures but which do not meet 

the definition of commercial item. 

DATES: March 12, 2012. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dustin Pitsch, telephone 703–602–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD is revising the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement a 

recommendation made by the Panel on 

Contracting Integrity and included in its 

2009 Report to Congress concerning 

compliance with the DFARS 

documentation requirements for 

commercial item determinations. The 

Panel on Contracting Integrity working 

group concluded, after reviewing a 

sampling of commercial contract 

awards, that contracting officer 

determinations are not always 

sufficiently documented in accordance 

with DFARS 212.102. 

DoD is issuing a final rule because 

this rule does not have a significant 

effect beyond the internal operating 

procedures of DoD and does not have a 

significant cost or administrative impact 

on contractors or offerors. This rule 

addresses DoD’s internal approval 

process for contracting officer 

determinations made pursuant to 

DFARS part 12 for actions in excess of 

$1 million. 

II. Discussion and Analysis 

The DFARS changes are as follows: 

• DFARS 212.102(a)(i) is revised to 

add ‘‘except for acquisitions made 

pursuant to Federal Acquisition 

Regulation (FAR) 12.102(f)(1).’’ This 

language clarifies that no additional 

contracting officer determination is 

required for acquisitions made pursuant 

to FAR 12.102(f)(1). 

• DFARS 212.102(a)(i)(A) is revised 

to add ‘‘or meets the criteria at FAR 

12.102(g)(1).’’ This language addresses 

the inconsistency between the existing 

DFARS language at 212.102(a)(i)(A) that 

all FAR part 12 acquisitions exceeding 

$1 million must meet the commercial 

item definition, and the exception at 

FAR 12.102(g)(1) that allows for the use 

of part 12 procedures for services that 

do not meet the definition of 

commercial item in FAR 2.101, as long 

as it meets specific criteria listed in FAR 

12.102(g)(1). The change clarifies that 

the contracting officer must determine 

that an acquisition exceeding $1 million 

and using part 12 procedures either 

meets the commercial item definition in 

part FAR 2.101 or the criteria set out at 

FAR 12.102(g)(1). 

• Adds DFARS 212.102(a)(i)(C) to 

require approval at one level above the 

contracting officer when the commercial 

item determination relies on subsections 

(1)(ii), (3), (4), or (6) of the ‘‘commercial 

item’’ definition at FAR 2.101. The 

higher-level approval is required for 

commercial item determinations for 

actions that exceed $1 million that are 

based on ‘‘of a type’’ commercial 

procurements or items ‘‘offered for sale’’ 

but not yet sold to the general public. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is a significant 

regulatory action and, therefore, was 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

The Regulatory Flexibility Act does 

not apply to this rule because this final 

rule does not constitute a significant 

DFARS revision as defined within the 

meaning at FAR 1.501–1, and 41 U.S.C. 

1707 does not require publication for 

comment. 

V. Paperwork Reduction Act 

The proposed rule does not contain 

any information collection requirements 

that require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Part 212 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 212 is 

amended as follows: 

■ 1. The authority citation for 48 CFR 

part 212 is revised to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Revise section 212.102 to read as 

follows: 


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Federal Register / Vol. 77, No. 48 / Monday, March 12, 2012 / Rules and Regulations 14481 

212.102 Applicability. 

(a)(i) When using FAR part 12 

procedures for acquisitions exceeding 

$1 million in value, except for 

acquisitions made pursuant to FAR 

12.102(f)(1), the contracting officer 

shall— 

(A) Determine in writing that the 

acquisition meets the commercial item 

definition in FAR 2.101 or meets the 

criteria at FAR 12.102(g)(1); 

(B) Include the written determination 

in the contract file; and 

(C) Obtain approval at one level above 

the contracting officer when a 

commercial item determination relies 

on subsections (1)(ii), (3), (4), or (6) of 

the ‘‘commercial item’’ definition at 

FAR 2.101. 

[FR Doc. 2012–5761 Filed 3–9–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 111220786–1781–01] 

RIN 0648–XB026 

Fisheries of the Northeastern United 

States; Summer Flounder Fishery; 

Quota Transfer 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; quota transfer. 

SUMMARY: NMFS announces that the 

State of North Carolina is transferring a 

portion of its 2012 commercial summer 

flounder quota to the Commonwealth of 

Virginia. By this action, NMFS adjusts 

the quotas and announces the revised 

commercial quota for each state 

involved. 

DATES: Effective March 7, 2012, through 

December 31, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Carly Bari, Fishery Management 

Specialist, 978–281–9224. 

SUPPLEMENTARY INFORMATION: 

Regulations governing the summer 

flounder fishery are found at 50 CFR 

part 648. The regulations require annual 

specification of a commercial quota that 

is apportioned among the coastal states 

from North Carolina through Maine. The 

process to set the annual commercial 

quota and the percent allocated to each 

state are described in § 648.100. 

The final rule implementing 

Amendment 5 to the Summer Flounder, 

Scup, and Black Sea Bass Fishery 

Management Plan, which was published 

on December 17, 1993 (58 FR 65936), 

provided a mechanism for summer 

flounder quota to be transferred from 

one state to another. Two or more states, 

under mutual agreement and with the 

concurrence of the Administrator, 

Northeast Region, NMFS (Regional 

Administrator), can transfer or combine 

summer flounder commercial quota 

under § 648.102(c)(2). The Regional 

Administrator is required to consider 

the criteria in § 648.102(c)(2)(i) to 

evaluate requests for quota transfers or 

combinations. 

North Carolina has agreed to transfer 

879,118 lb (398,761 kg) of its 2012 

commercial quota to Virginia. This 

transfer was prompted by summer 

flounder landings of a number of North 

Carolina vessels that were granted safe 

harbor in Virginia due to hazardous 

shoaling in Oregon Inlet, North 

Carolina, between January 1, 2012, and 

January 31, 2012, thereby requiring a 

quota transfer to account for an increase 

in Virginia’s landings that would have 

otherwise accrued against the North 

Carolina quota. The Regional 

Administrator has determined that the 

criteria set forth in § 648.102(c)(2)(i) 

have been met. The revised summer 

flounder quotas for calendar year 2012 

are: North Carolina, 2,614,661 lb 

(1,185,990 kg); and Virginia, 3,592,683 

lb (1,629,614 kg). 

Classification 

This action is taken under 50 CFR 

part 648 and is exempt from review 

under Executive Order 12866. 

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

Dated: March 7, 2012. 

Carrie Selberg, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2012–5921 Filed 3–7–12; 4:15 pm] 

BILLING CODE 3510–22–P 


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