Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Proposed Rules 22729 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

because most contracts awarded to 

small entities use simplified acquisition 

procedures or are awarded on a 

competitive fixed-price basis and do not 

utilize award-fee type incentives. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2006–D021) in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

List of Subjects in 48 CFR Parts 216 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR parts 216 and 252 as follows: 

1. The authority citation for 48 CFR 

parts 216 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 216—TYPES OF CONTRACTS 

2. Add sections 216.401 and 216.401– 

70 to read as follows: 

216.401 General. 

(e) Award-fee plans required in FAR 

16.401(e) must be incorporated into all 

award-fee type contracts. 

216.401–70 Objective criteria. 

(1) Contracting officers will use 

objective criteria to the maximum extent 

possible to measure contract 

performance. Objective criteria are 

associated with cost-plus-incentive-fee 

and fixed-price incentive contracts. 

(2) When objective criteria exist but 

the contracting officer determines that it 

is in the best interest of the Government 

also to incentivize subjective elements 

of performance, the most appropriate 

contract type is a multiple-incentive 

contract containing both objective 

incentives and subjective award-fee 

criteria (i.e., cost-plus-incentive-fee/ 

award-fee or fixed-price-incentive/ 

award-fee). 

(3) See PGI 216.401–70 for guidance 

on the use of award-fee contracts. 

3. Revise section 216.405–2 to read as 

follows: 

216.405–2 Cost-plus-award-fee contracts. 

(1) Award-fee pool. The award-fee 

pool is the total available award fee for 

each evaluation period for the life of the 

contract. The contracting officer must 

perform an analysis of appropriate fee 

distribution to ensure at least 40% of 

the award fee is held for the final 

evaluation so that the award fee is 

appropriately distributed over all 

evaluation periods to incentivize the 

contractor throughout performance of 

the contract. 

(2) Award-fee evaluation and 

payments. Award-fee payments other 

than payments resulting from the 

evaluation at the end of an award-fee 

period are prohibited. (This prohibition 

does not apply to base-fee payments.) 

The fee-determining official’s rating for 

award-fee evaluations will be provided 

to the contractor within 45 calendar 

days of the end of the period being 

evaluated. The final award-fee payment 

will be consistent with the contracting 

officer’s final evaluation of the 

contractor’s overall performance against 

the cost, schedule, and performance 

outcomes specified in the award-fee 

plan. 

(3) Limitations. 

(i) The CPAF contract shall not be 

used— 

(A) To avoid— 

(1) Establishing cost-plus-fixed-fee 

contracts when the criteria for cost-plusfixed-fee contracts apply; or 

(2) Developing objective targets so a 

cost-plus-incentive-fee contract can be 

used; or 

(B) For either engineering 

development or operational system 

development acquisitions that have 

specifications suitable for simultaneous 

research and development and 

production, except a CPAF contract may 

be used for individual engineering 

development or operational system 

development acquisitions ancillary to 

the development of a major weapon 

system or equipment, where— 

(1) It is more advantageous; and 

(2) The purpose of the acquisition is 

clearly to determine or solve specific 

problems associated with the major 

weapon system or equipment. 

(ii) Do not apply the weighted 

guidelines method to CPAF contracts for 

either the base (fixed) fee or the award 

fee. 

(iii) The base fee shall not exceed 

three percent of the estimated cost of the 

contract exclusive of the fee. 

(4) See PGI 216.405–2 for guidance on 

the use of cost-plus-award-fee contracts. 

4. Add section 216.406 to read as 

follows: 

216.406 Contract clauses. 

(e) Use the clause at 252.216–70XX, 

Award Fee, in solicitations and 

contracts when an award-fee contract is 

contemplated. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

5. Add section 252.216–70XX to read 

as follows: 

252.216–70XX Award fee. 

As prescribed in 216.406(e), insert the 

following clause: 

AWARD FEE (DATE) 

The Contractor may earn award fee from a 

minimum of zero dollars to the maximum 

amount stated in the award-fee plan in this 

contract. In no event will award fee be paid 

to the Contractor for any evaluation period in 

which the Government rates the Contractor’s 

overall cost, schedule, and technical 

performance below satisfactory. The 

Government may unilaterally revise the 

award-fee plan prior to the beginning of any 

rating period in order to redirect Contractor 

emphasis. 

(End of clause) 

[FR Doc. 2010–9881 Filed 4–29–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 245 and 252 

RIN 0750–AG64 

Defense Federal Acquisition 

Regulation Supplement; Reporting of 

Government Property Lost, Stolen, 

Damaged, or Destroyed (DFARS Case 

2008–D049) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD proposes to amend the 

Defense Federal Acquisition Regulation 

Supplement (DFARS) to require 

contractors to report loss, theft, damage, 

and destruction (LTDD) of Government 

property to the DCMA ‘‘eTools’’ 

application. 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
22730 Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Proposed Rules 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before June 

29, 2010 to be considered in the 

formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D049, 

using any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Follow the instructions for submitting 

comments. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2008–D049 in the subject 

line of the message. 

Fax: 703–602–0350. 

Mail: Defense Acquisition Regulations 

System, Attn: Ms. Mary Overstreet, 

OUSD(AT&L)DPAP(DARS), 3060 

Defense Pentagon, Room 3B855, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Mary Overstreet, 703–602–0311. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD is pursuing the migration from 

paper-based processes to greater use of 

automation. This proposed rule revises 

requirements for all DoD contractors to 

report the loss, theft, damage, and 

destruction (LTDD) of Government 

property to the DCMA ‘‘eTools’’ 

application. 

B. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 5 

U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

The objective of this rule is to provide 

DoD with a single repository of all 

LTDD data to improve accountability 

and control of DoD assets and contractor 

oversight. 

The rule generally will apply to DoD 

contractors provided with Governmentfurnished property. The proposed 

clause at 252.245–70XX Reporting Loss, 

Theft, Damage, or Destruction of 

Government Property, requires the 

contractor to use the Defense Contract 

Management Agency ‘‘e-Tools’’ software 

application for reporting of loss, 

damage, or destruction of Government 

property, which can be accessed from 

the DCMA homepage External Web 

Access Management application at 

http://www.dcma.mil. This rule is not 

expected to have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., because any start-up costs that 

contractors will incur to comply with 

the rule are expected to be minimal, and 

any such costs should be offset by the 

reduced administrative costs that are 

expected to result from implementation 

of this rule. 

At this time, DoD is unable to 

estimate the number of small entities to 

which this rule will apply. Therefore, 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (DFARS Case 2008–D049) in 

correspondence. 

C. Paperwork Reduction Act 

The information collection 

requirements under this proposed rule 

were formerly set forth under FAR 

52.245–1(f)(vi), and have been approved 

by the Office of Management and 

Budget under Clearance Number 9000– 

0075. The requirements of this proposed 

rule are not expected to change 

significantly the burden hours approved 

under Clearance Number 9000–0075. 

List of Subjects in 48 CFR Parts 245 and 

252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR parts 245 and 252 as follows: 

1. The authority citation for 48 CFR 

parts 245 and 252 continues to read as 

follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 245—GOVERNMENT PROPERTY 

2. Amend section 245.102 by adding 

paragraph (4) to read as follows: 

245.102 Policy. 

* * * * * 

(4) Reporting of Government Property 

Lost, Damaged, Destroyed, or Stolen. 

(i) The Defense Contract Management 

Agency (DCMA) ‘‘e-Tools’’ software 

application shall be the DoD data 

repository for reporting of loss, theft, 

damage, or destruction of Government 

property in the possession of 

contractors. Reporting value shall be at 

acquisition cost. The ‘‘e-Tools’’ system 

can be accessed from the DCMA home 

page External Web Access Management 

application at http://www.dcma.mil. 

(ii) Unless otherwise provided for in 

the contract, the requirements of 

paragraph (4)(i) of this section do not 

apply to normal and reasonable 

inventory adjustments of ‘‘low risk’’ 

consumable material such as common 

hardware, as agreed to by the contractor 

and Government Property 

Administrator. Such losses are typically 

a product of normal process variation. 

(iii) Reporting requirements apply to 

losses outside such variation. For 

example, due to theft of; or when losses 

occur due to a failure to provide 

adequate storage or security, e.g., failure 

to repair a leaky roof; or due to ‘‘acts of 

God,’’ e.g., tornado damages warehouse 

or stockroom. 

(iv) The aforementioned reporting 

requirements in no way change the 

liability provisions or reporting 

requirements under the clauses at FAR 

52.245–1, Government Property, or FAR 

52.245–2, Government Property 

Installation Operation Services. 

4. Amend section 245.107–70 by 

revising the section heading, 

redesignating the introductory text as 

paragraph (1), and adding paragraph (2) 

to read as follows: 

245.107–70 Contract Clauses. 

(1) Use the clause at 252.245–7000, 

Government-Furnished Mapping, 

Charting, and Geodesy Property, in 

solicitations and contracts when 

mapping, charting, and geodesy 

property is to be furnished. 

(2) Use the clause at 252.245–70XX in 

solicitations and contracts that contain 

the clause at— 

(i) FAR 52.245–1, Government 

Property; or 

(ii) FAR 52.245–2, Government 

Property Installation Operation 

Services. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

5. Section 252.245–70XX is added to 

read as follows: 

252.245–70XX Reporting Loss, Theft, 

Damage, or Destruction of Government 

Property. 

As prescribed in 245.107–70, use the 

following clause: 

REPORTING LOSS, THEFT, DAMAGE, OR 

DESTRUCTION OF GOVERNMENT 

PROPERTY (DATE) 

(a) Definitions. As used in this clause— 

Acquisition cost, for Government-furnished 

property, means the amount identified in the 

contract, or in the absence of such 

identification, the item’s fair-market value. 

Government property means all property 

owned or leased by the Government. 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1
Federal Register / Vol. 75, No. 83 / Friday, April 30, 2010 / Proposed Rules 22731 

Government property includes both 

Government-furnished property and 

Contractor-acquired property. Government 

property consists of material, equipment, 

special tooling, special test equipment, and 

real property. 

(b) Policy for Contractor Reporting of 

Government Property Lost, Stolen, Damaged, 

or Destroyed. 

(1) The Contractor shall use the Defense 

Contract Management Agency (DCMA) ‘‘eTools’’ software application for reporting of 

loss, theft, damage, or destruction of 

Government property. Reporting value shall 

be at acquisition cost. The ‘‘e-Tools’’ system 

can be accessed from the DCMA home page 

External Web Access Management 

application at http://www.dcma.mil. 

(2) Unless otherwise provided for in this 

contract, the requirements of paragraph (b) 

(1) of this clause do not apply to normal and 

reasonable inventory adjustments, i.e., losses 

of ‘‘low risk’’ consumable material such as 

common hardware, as agreed to by the 

Contractor and the Government Property 

Administrator. Such losses are typically a 

product of normal process variation. The 

Contractor shall ensure that its property 

management system provides adequate 

management control measures, e.g., statistical 

process controls, as a means of managing 

such variation. 

(3) Reporting requirements apply to losses 

outside such variation. For example, due to 

theft of; or when losses occur due to a failure 

to provide adequate storage or security, e.g., 

failure to repair a leaky roof; or due to ‘‘acts 

of God,’’ e.g., tornado damages warehouse or 

stockroom. 

(4) The aforementioned reporting 

requirements in no way change the liability 

provisions or reporting requirements under 

the clauses at FAR 52.245–1, Government 

Property, or FAR 52.245–2, Government 

Property Installation Operation Services. 

(End of clause) 

[FR Doc. 2010–9890 Filed 4–29–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

Docket No. 0907301201–91203–01 

RIN 0648–AY15 

Implementation of Fish and Fish 

Product Import Provisions of the 

Marine Mammal Protection Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Advance notice of proposed 

rulemaking; request for comments. 

SUMMARY: NMFS issues this advance 

notice of proposed rulemaking to 

announce that it is developing 

procedures to implement provisions of 

the Marine Mammal Protection Act for 

imports of fish and fish products. NMFS 

is seeking advance public comment on 

the development of these procedures 

and on the types of information to be 

considered in the process. 

DATES: Written comments must be 

received by 5 p.m. on June 29, 2010. 

ADDRESSES: You may submit comments 

by any of the following methods: 

(1) Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

(2) Mail: Director, Office of 

International Affairs, Attn: MMPA Fish 

Import Provisions, NMFS, F/IA, 1315 

East-West Highway, Silver Spring, MD 

20910 

(3) Fax: (301) 713–2313 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may 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, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

FOR FURTHER INFORMATION CONTACT: 

Michael Simpkins at 

Michael.Simpkins@noaa.gov or 301– 

713–9090. 

SUPPLEMENTARY INFORMATION: 

Background 

The Marine Mammal Protection Act 

(MMPA), 16 U.S.C. 1361–1423h, 

contains provisions addressing bycatch, 

or the incidental mortality and serious 

injury, of marine mammals in both 

domestic and foreign fisheries. With 

respect to foreign fisheries, section 

101(a)(2) of the MMPA (16 U.S.C. 

1371(a)(2)) states that ‘‘[t]he Secretary of 

the Treasury shall ban the importation 

of commercial fish or products from fish 

which have been caught with 

commercial fishing technology which 

results in the incidental kill or 

incidental serious injury of ocean 

mammals in excess of United States 

standards. For purposes of applying the 

preceding sentence, the Secretary [of 

Commerce]- (A) shall insist on 

reasonable proof from the government of 

any nation from which fish or fish 

products will be exported to the United 

States of the effects on ocean mammals 

of the commercial fishing technology in 

use for such fish or fish products 

exported from such nation to the United 

States.’’ 

This rulemaking would define the 

‘‘United States standards’’ referred to in 

MMPA section 101(a)(2), along with any 

associated criteria by which the United 

States would assess foreign fisheries 

that supply fish and fish product 

imports to the United States (hereafter 

‘‘import-supplying fisheries’’) with 

respect to marine mammal bycatch. The 

rule also would describe procedures for 

ensuring the established standards and 

their associated criteria are met, as well 

as procedures for developing 

recommendations regarding import 

prohibitions if those standards and 

associated criteria are not met. In 

defining the standards and associated 

criteria by which marine mammal 

bycatch in import-supplying fisheries 

would be evaluated, this rulemaking 

would consider U.S. statutory 

provisions and regulations applied to 

the management of incidental mortality 

and serious injury of marine mammals, 

including provisions of the MMPA, the 

Endangered Species Act (ESA), and the 

High Seas Driftnet Fishing Moratorium 

Protection Act (HSDFMPA). 

This rulemaking also would recognize 

existing bilateral or multilateral 

arrangements to address marine 

mammal bycatch in foreign fisheries as 

well as the potential for such 

arrangements in the future. In the case 

of eastern tropical Pacific yellowfin tuna 

purse seine fisheries, marine mammal 

bycatch is covered by section 

101(a)(2)(B) and Title III of the MMPA 

(16 U.S.C. 1371(a)(2)(B) & 1411–1417, 

respectively), which incorporate 

requirements adopted under the 

auspices of the Agreement on the 

International Dolphin Conservation 

Program (AIDCP). 

U.S. Incidental Marine Mammal 

Mortality and Serious Injury Statutory 

Provisions 

Section 2 of the MMPA describes 

several broad goals, including (1) 

maintaining the health and stability of 

the marine ecosystem; (2) retaining 

marine mammals as a significant 

functioning element in the ecosystem of 

which they are a part; and (3) ensuring 

that marine mammals can remain at or 

recover to their optimum sustainable 

population. The term ‘‘optimum 

sustainable population’’ is defined in 

section 3(9) (16 U.S.C. 1362(9), 50 CFR 

216.3) of the MMPA as ‘‘the number of 

animals which will result in the 

maximum productivity of the 


wwoods2 on DSK1DXX6B1PROD with PROPOSALS_PART 1