Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Proposed Rules 2463 

252.244–7XXX Contractor purchasing 

system administration. 

As prescribed in 244.305–7X, insert 

the following clause: 

Contractor Purchasing System 

Administration (Date) 

(a) Definitions. As used in this clause— 

Deficiency means a failure to maintain any 

element of an acceptable purchasing system. 

Purchasing system means the Contractor’s 

system or systems for purchasing and 

subcontracting including make or buy 

decisions, the selection of vendors, analysis 

of quoted prices, negotiation of prices with 

vendors, placing and administering of orders, 

and expediting delivery of materials. 

Purchasing system includes, but is not 

limited to— 

(1) Internal audits or management reviews, 

training, and policies and procedures for the 

purchasing department to ensure the 

integrity of the purchasing system; 

(2) Policies and procedures to assure 

purchase orders and subcontracts contain all 

flow down clauses, including terms and 

conditions required by the prime contract 

and any clauses required to carry out the 

requirements of the prime contract; 

(3) An organizational and administrative 

structure that ensures effective and efficient 

procurement of required quality materials 

and parts at the most economical cost from 

responsible and reliable sources; 

(4) Selection processes to ensure the most 

responsive and responsible sources for 

furnishing required quality parts and 

materials and to promote competitive 

sourcing among dependable suppliers so that 

purchases are reasonably priced and from 

sources that meet contractor quality 

requirements; 

(5) Performance of price or cost analysis on 

purchasing actions; and 

(6) Procedures to ensure that proper types 

of subcontracts are selected and that there are 

controls over subcontracting, including 

oversight and surveillance of subcontracted 

effort. 

(b) General. The Contractor shall establish 

and maintain an acceptable purchasing 

system. Failure to maintain an acceptable 

purchasing system, as defined in this clause, 

may result in disapproval of the system by 

the ACO and/or withholding of payments. 

(c) System requirements. (1) Have an 

adequate system description including 

policies, procedures, and operating 

instructions that comply with the FAR and 

DFARS. 

(2) Ensure that all applicable purchase 

orders and subcontracts contain all flow 

down clauses, including terms and 

conditions and any other clauses needed to 

carry out the requirements of the prime 

contract. 

(3) Maintain an organization plan that 

establishes clear lines of authority and 

responsibility. 

(4) Purchase orders are based on 

authorized requisitions and include complete 

history files. 

(5) Establish and maintain adequate 

documentation to provide a complete and 

accurate history of purchase transactions to 

support vendors selected and prices paid. 

(6) Apply a consistent make or buy policy 

that is in the best interest of the Government. 

(7) Use competitive sourcing to the 

maximum extent practicable and ensure 

debarred or suspended contractors are 

properly excluded from contract award. 

(8) Evaluate price, quality, delivery, 

technical capabilities, and financial 

capabilities of competing vendors. 

(9) Require management level justification 

and cost/price analysis as applicable for any 

sole or single source award. 

(10) Perform appropriate cost or price 

analysis and technical evaluation for each 

subcontractor and supplier proposal or quote. 

(11) Document negotiations in accordance 

with FAR 15.406–3. 

(12) Seek, take, and document appropriate 

purchase discounts, including cash 

discounts, trade discounts, quantity 

discounts, rebates, freight allowances, and 

company-wide volume discounts. 

(13) Ensure proper type of contract 

selection and prohibit issuance of cost-plusa-percentage-of-cost subcontracts. 

(14) Maintain subcontract surveillance to 

ensure timely delivery of an acceptable 

product and procedures to notify the 

Government of potential subcontract 

problems that may impact delivery, quantity, 

or price. 

(15) Document and justify reasons for 

subcontract changes that affect cost or price. 

(16) Notify the Government of the award of 

an auditable subcontract and perform 

adequate audits of those subcontracts. 

(17) Enforce adequate policies on conflict 

of interest, gifts, and gratuities, including the 

requirements of the Anti-Kickback Act. 

(d) System deficiencies. (1) The ACO will 

provide an initial notification to the 

Contractor of system deficiencies. The initial 

notification will describe the deficiency in 

sufficient detail to allow the contractor to 

understand what actions are necessary to 

correct the deficiencies. 

(2) The Contractor shall respond within 30 

days to a written initial notification from the 

ACO that identifies deficiencies in the 

Contractor’s purchasing system. If the 

Contractor disagrees with the initial 

notification, the Contractor shall state in 

writing its rationale for disagreeing. 

(3) The ACO will evaluate the Contractor’s 

response and notify the Contractor of the 

determination concerning remaining 

deficiencies, the adequacy of any proposed or 

completed corrective action, and system 

disapproval, if applicable. 

(e) Withholding payments. If the ACO 

determines the Contractor’s purchasing 

system contains one or more deficiencies, 

and the contract includes the clause at 

252.242–7XXX, Business Systems, the ACO 

will withhold payments in accordance with 

that clause. 

(End of clause) 

[FR Doc. 2010–392 Filed 1–14–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Department of the Army 

48 CFR Parts 5132, 5136, and 5152 

RIN 0710–AA69 

Continuing Contract for Civil Works 

Project Managed by the United States 

Army Corps of Engineers Clauses 

AGENCY: U.S. Army Corps of Engineers, 

Department of the Army, DoD. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The U.S. Army Corps of 

Engineers (USACE) is proposing an 

interim Continuing Contracts clause for 

use on specifically authorized Civil 

Works projects only. This proposal is in 

response to a recurring statutory 

provision that requires a change to the 

clause USACE had previously used. 

DATES: Comments must be received by 

March 16, 2010. 

ADDRESSES: You may submit comments, 

identified by docket number COE– 

2009–0065, by any of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: 

contract.policy@usace.army.mil. 

Include the docket number, COE–2009– 

0065, in the subject line of the message. 

Mail: U.S. Army Corps of Engineers, 

Attn: CECT–P (Robin A. Baldwin), 441 

G Street, NW., Washington, DC 20314– 

1000. 

Hand Delivery/Courier: Due to 

security requirements, we cannot 

receive comments by hand delivery or 

courier. 

Instructions: Direct your comments to 

docket number COE–2009–0065. All 

comments received will be included in 

the public docket without change and 

may be made available on-line at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the commenter indicates that the 

comments includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI, or otherwise 

protected, through regulations.gov or email. The regulations.gov Web site is an 

anonymous access system, which means 

we will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an e-mail directly to the U.S. Army 

Corps of Engineers without going 

though http://www.regulations.gov, your 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
2464 Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Proposed Rules 

e-mail address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, we recommend that you 

include your name and other contract 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If we cannot read your 

comment because of technical 

difficulties and cannot contact you for 

clarification, we may not be able to 

consider your comment. Electronic 

comments should avoid the use of any 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. All documents in 

the docket are listed. Although listed in 

the index, some information is not 

publicly available, such as CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Robin A. Baldwin, Headquarters U.S. 

Army Corps of Engineers, Directorate of 

Contracting, Policy Division, 441 G 

Street, Washington, DC at 202–761– 

8645. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The new funding clause for civil 

works projects includes alternate 

language and is designed to give USACE 

officials options for funding contracts 

spanning more than one fiscal year after 

the enactment of statutory restrictions to 

the Corps’ continuing contract 

authority. The new clause allows 

Congress more oversight over 

continuing contracts and better control 

over the rate at which funds are spent 

on projects. The end result is contracts 

that obligate funds in close alignment 

with prerogatives reflected in budget 

documents and appropriations acts. 

USACE has submitted a report to 

Congress on the overall effects, both 

positive and negative, of the statutory 

restriction. 

Continuing contracts are authorized 

by Section 10 of the River and Harbor 

Act of 1922, 33 U.S.C. 621, which 

provides as follows: ‘‘Any public work 

on canals, rivers, and harbors adopted 

by Congress may be prosecuted by 

direct appropriations, by continuing 

contracts, or by both direct 

appropriations and continuing 

contracts.’’ The use of continuing 

contracts permitted large civil work 

projects, spanning more than one fiscal 

year, to be accomplished in a 

comprehensive manner, rather than 

through a series of yearly work units. 

Implementation of continuing contract 

was covered under Engineers Federal 

Acquisition Regulation Supplement 

(EFARS) Subpart 32.7—Contract 

Funding, and through the inclusion of 

either clause EFARS 52.232–5001, 

Continuing Contracts, or EFARS 

52.232–5002, Continuing Contracts 

(Alternate). 

The Energy and Water Development 

Appropriations Act of 2006 (06 

E&WDA), Public Law 109–103, included 

provisions that restricted the Corps’ 

authority to reprogram funds and award 

continuing contracts in Fiscal Year 

2006. Section 108 of the 06 E&WDA 

prohibited the Corps from awarding or 

modifying an existing continuing 

contract when doing so would commit 

an amount in excess of the amount 

appropriated for that project pursuant to 

the 06 E&WDA, plus any amounts 

available from carryover or 

reprogramming. In light of Section 108 

of the 06 E&WDA, USACE changed its 

implementation of continuing contracts, 

as well as the clauses it uses to award 

new continuing contracts that are not 

fully funded. The restriction in Section 

108 has been carried forward into all 

E&WDAAs, and USACE anticipates that 

Congress will continue to include that 

restriction in future Acts. 

The existing continuing contract 

clause (EFARS 52.232–5001) permits 

the contractor to work beyond the 

amount reserved to the contract for a 

fiscal year. Doing so creates a legal 

liability to pay the contractor for such 

costs, even though—under the existing 

continuing contract clause—the Corps 

does not have to make the payments 

until the next fiscal year. Accordingly, 

because the clause permits contractors 

to commit the government in excess of 

the amount appropriated for that project 

plus available carryover and 

reprogramming, use of this clause runs 

a high risk of violating the new statutory 

restriction on continuing contracts. 

In order to implement the USACE 

Civil Works program under the new 

continuing contract restrictions, USACE 

has drafted a new clause for inclusion 

in the AFARS. The basic clause, 

‘‘5152.232–9000 Special Continuing 

Contract for Civil Works Project 

Managed by the United States Army 

Corps of Engineers,’’ permits the Corps 

to award continuing contracts while 

only obligating the government’s 

estimate of contractor earnings for the 

first fiscal year. This basic clause does 

not permit the contractor to work 

beyond the amount reserved, and it also 

expressly requires the contractor to stop 

working when funds are exhausted. The 

alternate language, if appropriate, would 

limit the government’s liability for 

termination costs to the amount 

reserved on the contract. In contrast, 

under the basic clause, the government 

is responsible for all costs pursuant to 

the termination for convenience clause 

regardless of the amount reserved on the 

contract. 

Alternatives to using the new clause 

include fully funding contracts at 

award; structuring the work into 

segments that could be accomplished 

through options, using multiple fullyfunded contracts over multiple years, or 

using the clause at DFARS 252.232– 

7007 to incrementally fund a contract. 

Each of these alternatives is still a viable 

alternative and the contracting officer 

must choose which acquisition strategy 

best suits the requirement. That 

determination shall be based on an 

analysis of the possible contracting 

options with the intent that the Special 

Continuing Contract for Civil Works 

Project Managed by the United States 

Army Corps of Engineers clause be used 

as a least preferred method. 

In light of the legal restrictions on 

continuing contracts, USACE had to 

change its implementation of existing 

continuing contracts, as well as the 

terms it uses to award new continuing 

contracts. USACE shall no longer permit 

the contractor to work beyond the 

amount reserved in the contract without 

first reprogramming sufficient funds to 

cover the contractor’s earnings through 

the end of the fiscal year. The new 

clause should be used where the true 

Continuing Contract clause (EFARS 

52.232–5001) might have been used in 

the past and alternative contract options 

are not viable. 

B. Regulatory Flexibility Act 

This proposed rule may have a 

significant economic impact upon a 

substantial number of small entities. 

The clause differs from the true 

continuing contract clause (EFARS 

52.232–5001) in that they no longer 

permit the contractor to work beyond 

the amount reserved to the contract. 

This change may affect a contractor’s 

ability to schedule work and equipment 

effectively. Pursuant to authority 

contained in Section 608(a) of the Act 

(5 U.S.C. 608(a)) a determination has 

been made that circumstances require 

delay in preparation of an initial 

Regulatory Flexibility Act analysis to 

bring the USACE continuing contract 

into compliance with existing statutory 

authority. Within approximately thirty 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Proposed Rules 2465 

days an analysis will be prepared and 

forwarded to the Chief Counsel for 

Advocacy of the Small Business 

Administration. Comments from small 

entities concerning the affected AFARS 

Subpart 5152 will be considered in 

accordance with Section 610 of the Act. 

Such comments shall be submitted 

separately and cite the AFARS Proposed 

Rule on Continuing Contract for Civil 

Works Project in the correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed rule 

does not impose any new information 

collection burden that requires the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 5132, 

5136, and 5152 

Government procurement. 

Dated: January 7, 2010. 

Approved By: 

Robin A. Baldwin, 

Chief, Contracting Policy Division. 

For the reasons stated in the 

preamble, the Corps is proposing to 

amend 48 CFR Chapter 51 as set forth 

below: 

1. Add part 5132 to read as follows: 

PART 5132—CONTRACT FINANCING 

Subpart 5132.7—Contract Funding 

Sec. 

5132.703–90 Civil Works Project 

Appropriations Act Restriction. 

5132.705 Contract Clauses [Reserved]. 

5132.705–90 Clause for Limitation of the 

Government’s Obligation for Civil Works 

Projects. 

Authority: 33 U.S.C. 621, 10 U.S.C. 2202, 

DOD Directive 5000.35, FAR 1.301 and DOD 

FAR Supplement 201.3. 

Subpart 5132.7—Contract Funding 

5132.703–90 Civil Works Project 

Appropriations Act Restriction. 

(a) The U.S. Army Corps of Engineers 

(USACE) is authorized by 33 U.S.C. 621 

to prosecute its specifically authorized 

civil works projects on canals, rivers 

and harbors by direct appropriations or 

by continuing contract, or both. A 

continuing contract permits USACE to 

obligate the government to the entire 

contract amount at award and fund the 

contract incrementally until completion. 

5132.705 Contract Clauses [Reserved]. 

5132.705–90 Clause for Limitation of the 

Government’s Obligation for Civil Works 

Projects. 

(a) The clause at 5152.232–9000, 

Special Continuing Contract for Civil 

Works Project Managed by the United 

States Army Corps of Engineers, may be 

used in solicitations and contracts for 

civil works water resource projects that 

have been specifically adopted by 

Congress in authorizing legislation and 

for which future fiscal year funding is 

provided in the budget. This clause 

shall be used for all civil works projects 

when funds are appropriated for the 

project from either the operation and 

maintenance (O&M) account in the 

Energy and Water Development 

Appropriations Act (E&WDAA) or the 

O&M portion of the Mississippi River 

and Tributaries account in the 

E&WDAA and sufficient funds are not 

available to complete the contract. The 

contracting officer must insert the sum 

being reserved in the clause and reserve 

this amount stated in subsection (a) of 

the clause at contract award and modify 

the contract each fiscal year to reflect 

the amount reserved. This clause is 

required through 30 September 2010 in 

accordance with Section 103 of the 

Energy and Water Development 

Appropriations Act, 2010, Public Law 

111–85. If future appropriations acts 

continue in the same manner, the 

requirement will be extended as 

appropriate beyond fiscal year 2010. 

(b) The Alternate language for clause 

5152.232–9000 may be used in 

solicitations and contracts for civil 

works water resource projects that have 

been specifically adopted by Congress 

in authorizing legislation but for which 

future fiscal year funding is not 

provided in the budget or when use of 

the 5152.232–9000 clause could be 

used. The contracting officer must insert 

the sum being reserved in the clause 

and reserve this amount stated in 

subsection (a) of the clause at contract 

award and modify the contract each 

fiscal year to reflect the amount 

reserved. Section 103 of the Energy and 

Water Development Appropriations Act, 

2010, Public Law 111–85. If future 

appropriations acts continue in the 

same manner, the requirement will be 

extended as appropriate beyond fiscal 

year 2010. 

2. Add part 5136 to read as follows: 

PART 5136—SPECIAL ASPECTS OF 

CONTRACTING FOR CONSTRUCTION 

Subpart 5136.290—Civil Works 

Construction Contracts 

Sec. 

5136.290–1 Policy. 

5136.290–2 Definition. 

Authority: 33 U.S.C. 621, 10 U.S.C. 2202, 

DOD Directive 5000.35, FAR 1.301 and DOD 

FAR Supplement 201.3. 

Subpart 5136.290—Civil Works 

Construction Contracts 

5136.290–1 Policy. 

The Secretary of the Army, acting 

through the Chief of Engineers, is 

authorized by 33 U.S.C. 621 to carry out 

projects for improvement of rivers and 

harbors (other than surveys, estimates, 

and gaugings) by contract or otherwise, 

in the manner most economical and 

advantageous to the United States. The 

U.S. Army Corps of Engineers (USACE) 

is the only contracting organization 

authorized to contract for civil works 

construction projects. See AFARS Part 

5132.703–90. 

5136.290–2 Definition. 

As used in this subpart— 

‘‘Civil works’’ means authorized civil 

functions of the Department of the Army 

pertaining to rivers and harbors, flood 

control, shore protection and storm 

damage reduction, aquatic ecosystem 

restoration, and related purposes. 

PART 5152—TEXTS AND PROVISIONS 

OF CLAUSES 

3. The authority citation for part 5152 

is revised to read as follows: 

Authority: 10 U.S.C. 2202, 33 U.S.C. 621, 

DoD Directive 5000.35, FAR 1.301, DoD FAR 

Supplement 201.301, and DOD FAR 

Supplement 201.3. 

4. Add 51.232–9000 to read as 

follows: 

5152.232–9000 Special Continuing 

Contract for Civil Works Project Managed 

by the United States Army Corps of 

Engineers. 

As prescribed in 5132.290–1 and 

5132.705–90(a), use the following 

clause: 

(a) Funds are not available at the 

inception of this contract to cover the 

entire contract price. The liability of the 

Government is limited by this clause 

notwithstanding any contrary provision 

of the ‘‘Payments to Contractor’’ clause 

or any other clause of this contract, 

except the Termination for Convenience 

clause. The sum of $llll [Each 

fiscal year of contract execution, 

Contracting Officer shall insert the 

specific dollar amount that is reserved 

for this contract and available for 

payment to the contractor during the 

current fiscal year. The Contracting 

Officer shall modify that amount to 

reflect any funds added to or subtracted 

from the contract during a current fiscal 

year.] has been reserved for this contract 

and is available for payment to the 

Contractor during the current fiscal 

year. It is expected that Congress will 

make appropriations for future fiscal 

years from which additional funds, 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
2466 Federal Register / Vol. 75, No. 10 / Friday, January 15, 2010 / Proposed Rules 

together with funds provided by one or 

more non-federal project sponsors, will 

be reserved for this contract. 

(b) Failure to make payments in 

excess of the amount currently reserved, 

or that may be reserved from time to 

time, shall not be considered a breach 

of contract and shall not entitle the 

Contractor to a price adjustment under 

the terms of this contract. 

(c) The Government may at any time 

reserve additional funds for payments 

under the contract if there are funds 

available for such purpose. The 

Contracting Officer will promptly notify 

the Contractor of any additional funds 

reserved for the contract by issuing an 

administrative modification to the 

contract. 

(d) If earnings will be such that funds 

reserved for the contract will be 

exhausted before the end of any fiscal 

year, the Contractor shall give written 

notice to the Contracting Officer of the 

estimated date of exhaustion and the 

amount of additional funds which will 

be needed to meet payments due or to 

become due under the contract during 

that fiscal year. This notice shall be 

given not less than 120 days prior to the 

estimated date of exhaustion. Unless 

informed in writing by the Contracting 

Officer that additional funds have been 

reserved for payments under the 

contract, the Contractor shall stop work 

upon the exhaustion of funds. 

(e) No payments will be made after 

exhaustion of funds except to the extent 

that additional funds are reserved for 

the contract. 

(f) Any suspension, delay, or 

interruption of work arising from 

exhaustion or anticipated exhaustion of 

funds shall not constitute a breach of 

this contract and shall not entitle the 

Contractor to any price adjustment 

under the ‘‘Suspension of Work’’ clause 

or in any other manner under this 

contract. 

(g) An equitable adjustment in 

performance time shall be made for any 

increase in the time required for 

performance of any part of the work 

arising from exhaustion of funds or the 

reasonable anticipation of exhaustion of 

funds. 

(h) If, upon the expiration of onehundred (100) days after the beginning 

of the fiscal year following an 

exhaustion of funds, the Government 

has failed to reserve additional funds for 

this contract sufficient to cover the 

Government’s estimate of funding 

required for the first quarter of that 

fiscal year, the Contractor, by written 

notice delivered to the Contracting 

Officer at any time before such 

additional funds are reserved, may elect 

to treat his right to proceed with the 

work as having been terminated. Such a 

termination shall be considered a 

termination for the convenience of the 

Government. 

(i) If at any time it becomes apparent 

that the funds reserved for any fiscal 

year are in excess of the funds required 

to meet all payments due or to become 

due the Contractor because of work 

performed and to be performed under 

the contract during the fiscal year, the 

Government reserves the right, after 

notice to the Contractor, to reduce said 

reservation by the amount of such 

excess. 

(j) The term ‘‘Reservation’’ means 

monies that have been set aside and 

made available for payments under this 

contract. Reservations of funds shall be 

made in writing via an administrative 

modification issued by the Contracting 

Officer. 

Alternate I 

If future funding for the specifically 

authorized civil works project for which 

use of the continuing contract is 

contemplated is not included in the 

following year’s President’s Budget, 

substitute the following paragraphs (a) 

and (h) for paragraphs (a) and (h) of the 

basic clause: 

(a) Funds are not available at the 

inception of this contract to cover the 

entire contract price. The liability of the 

Government is limited by this clause 

notwithstanding any contrary provision 

of the ‘‘Payments to Contractor’’ clause 

or any other clause of this contract. The 

sum of $llll [Each fiscal year of 

contract execution, Contracting Officer 

shall insert the specific dollar amount 

that is reserved for this contract and 

available for payment to the contractor 

during the current fiscal year. The 

Contracting Officer shall modify that 

amount to reflect any funds added to or 

subtracted from the contract during a 

current fiscal year.] has been reserved 

for this contract and is available for 

payment to the Contractor during the 

current fiscal year. It is expected that 

Congress will make appropriations for 

future fiscal years from which 

additional funds, together with funds 

provided by one or more non-federal 

project sponsors, will be reserved for 

this contract. 

(h) If, upon the expiration of onehundred (100) days after the beginning 

of the fiscal year following an 

exhaustion of funds, the Government 

has failed to reserve additional funds for 

this contract sufficient to cover the 

Government’s estimate of funding 

required for the first quarter of that 

fiscal year, the Contractor, by written 

notice delivered to the Contracting 

Officer at any time before such 

additional funds are reserved, may elect 

to treat his right to proceed with the 

work as having been terminated. The 

Government will not be obligated in any 

event to reimburse the Contractor for 

any costs incurred after the exhaustion 

of funds regardless of anything to the 

contrary in the clause entitled 

‘‘Termination for Convenience of the 

Government.’’ 

[FR Doc. 2010–379 Filed 1–14–10; 8:45 am] 

BILLING CODE 3720–58–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 234 

[Docket No. FRA–2009–0032, Notice No. 4] 

RIN 2130–AC20 

State Highway-Rail Grade Crossing 

Action Plans 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of public hearing and 

extension of comment period. 

SUMMARY: By notice of proposed 

rulemaking (NPRM) published on 

November 13, 2009 (74 FR 58589), FRA 

proposed a rule to require the ten States 

with the most highway-rail grade 

crossing collisions, on average, over the 

past three years, to develop State 

highway-rail grade crossing action 

plans. This document announces a 

public hearing to provide interested 

parties the opportunity to comment on 

the NPRM and announces a fourteen 

(14) day extension of the comment 

period, which closed December 14, 

2009, to commence on the date of the 

public hearing. The extension provides 

interested parties the opportunity to 

comment on the NPRM and to respond 

to matters that arise at the public 

hearing related to the NPRM. 

DATES: (1) Public Hearing: A public 

hearing will be held on the date and at 

the location listed below to provide 

interested parties the opportunity to 

comment on the proposed rule 

contained in the NPRM. A fourteen (14) 

day extension of the comment period 

will commence on the date of the 

hearing. The date of the public hearing 

is as follows: Monday, February 22, 

2010, at 9:30 a.m. in Washington, DC. 

(2) Extension of Comment Period: The 

comment period will reopen Monday, 

February 22, 2010 and written 

comments must be received by Monday, 

March 8, 2010. Comments received after 

that date will be considered to the 


erowe on DSK5CLS3C1PROD with PROPOSALS-1