Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Proposed Rules 32723 

Section Remove Add 

970.5232–2(e)(2)(iv)(B) in the last sentence ‘‘contractor’’ ‘‘Contractor’’ 

970.5232–3(d) in the second sentence ‘‘Clause __,’’ ‘‘Clause 970.5204–3,’’ 

970.5232–3(j) in the last sentence ‘‘Penalties for Unallowable costs;’’ ‘‘Penalties for Unallowable Costs;’’ 

21. In the table below, for each section 

indicated in the left column, remove the 

word indicated in the right column from 

where it appears in the section: 

Section Remove 

970.2201–1–2(a)(1)(ii) ‘‘48 CFR’’ 

970.2671–2 ‘‘48 CFR’’ 

970.2672–3 ‘‘48 CFR’’ 

970.2673–2 ‘‘48 CFR’’ 

970.5226–1 introductory text ‘‘48 CFR’’ 

970.5226–2 introductory text ‘‘48 CFR’’ 

970.5226–3 introductory text ‘‘48 CFR’’ 

970.5232–5(b) in two places ‘‘FAR’’ 

[FR Doc. 2010–13678 Filed 6–8–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

48 CFR Parts 3015, 3016, and 3052 

[Docket No. DHS–2010–0045] 

RIN 1601–AA43 

Revision of Department of Homeland 

Security Acquisition Regulation; 

Limitations on Subcontracting in 

Emergency Acquisitions (HSAR Case 

2009–005) 

AGENCY: Office of the Chief Procurement 

Officer, DHS. 

ACTION: Proposed rule with requests for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) is proposing to amend 

its Homeland Security Acquisition 

Regulation (HSAR) to implement a 

statutory requirement limiting the use of 

subcontractors on cost-reimbursement 

type contracts entered into by the 

Department to facilitate the response to 

or recovery from a natural disaster or act 

of terrorism or other man-made disaster. 

DATES: Comments and related material 

submitted electronically must be 

submitted to the Federal eRulemaking 

Portal http://www.regulations.gov. on or 

before August 9, 2010. Comments and 

related material submitted by mail must 

reach the Department of Homeland 

Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch at the address 

shown below on or before August 9, 

2010 to be considered in the formation 

of the final rule. 

ADDRESSES: You may submit comments 

identified by DHS docket number DHS– 

2010–0045, using any one of the 

following methods: 

(1) Via the internet at Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

and use docket number DHS–2010– 

0045. 

(2) By mail to the Department of 

Homeland Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch, Attn: Jeremy 

Olson, 245 Murray Drive, Bldg. 410 

(RDS), Washington, DC 20528. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Olson, Department of Homeland 

Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch, (202) 447–5197. 

SUPPLEMENTARY INFORMATION: 

I. Request for Comments 

II. Background 

III. Discussion of Proposed Rule 

IV. Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) 

B. Small Entities 

C. Collection of Information 

I. Request for Comments 

Interested persons are invited to 

participate in this rulemaking by 

submitting comments and related 

materials. Comments and related 

materials should be organized by HSAR 

Part, and indicate the specific section 

that is being commented on. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. See 

ADDRESSES above for information on 

how to submit comments. If you submit 

comments by mail, please submit them 

in an unbound format, no larger than 

81⁄2 by 11 inches, suitable for copying 

and electronic filing. You may submit 

comments either by mail or via the 

internet as identified in the ADDRESSES

section above; but to avoid duplication 

DHS requests that you submit comments 

and materials by only one method. If 

you would like DHS to acknowledge 

receipt of comments submitted by mail, 

please enclose a self-addressed, stamped 

postcard or envelope. DHS will consider 

all comments and material received 

during the comment period. 

Viewing comments and documents: 

To view comments and read background 

documents related to this rulemaking, 

go to http://www.regulations.gov, which 

contains relevant instructions under the 

FAQs tab on the home page. 

II. Background 

Section 692 of the Post-Katrina 

Emergency Management Reform Act of 

2006 (PKEMRA), Public Law 109–295, 

120 Stat. 1394, 1409 (Oct. 4, 2006), 

establishes a limitation on 

subcontracting for cost-reimbursement 

type contracts above the simplified 

acquisition threshold entered into to 

facilitate the response to or recovery 

from a natural disaster or act of 

terrorism or other man-made disaster. 

Congress enacted this limitation based 

on findings that excessive tiering of 

subcontractors under disaster recovery 

cost-reimbursement type contracts leads 

to inflated overhead charges and poor 

prime contractor oversight over 

subcontractor work. In order to 

implement the statutory requirement, 

DHS proposes to amend the Homeland 

Security Acquisition Regulation (HSAR) 

to add implementing policy. 

III. Discussion of Proposed Rule 

The proposed rule would revise 48 

CFR part 3015, Contracting by 

Negotiation; part 3016, Types of 

Contracts; and part 3052, Solicitation 

Provisions and Contract Clauses, to 

limit the use of subcontractors by prime 

contractors on certain DHS acquisitions 

above the simplified acquisition 

threshold (as defined by section 4 of the 

Office of Federal Procurement Policy 

Act (41 U.S.C. 403) (currently 

$100,000)), unless DHS determines that 

such requirements are not feasible or 

practicable. The authority to determine 

whether or not the subcontracting 

requirements are not feasible or 

practicable rests one level above the 

contracting officer. This determination 

may be made on the basis of analysis of 

information provided by an offeror 

seeking a DHS contract or the 

contracting officer may prepare a 

recommended Determination & Finding 

for review and approval by the deciding 

official. 

Contracts to be covered by the 

proposed regulation are those awarded 

in response to or recovery from: (1) A 

major disaster or emergency declared by 

the President under Title IV or Title V 

of the Robert T. Stafford Disaster Relief 

and Emergency Assistance Act, as 


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amended (42 U.S.C. 5121–5207) (see 

http://www.fema.gov/news/ 

disasters.fema#sev2 for a list of 

declarations); (2) An uncontrolled fire or 

fire complex, threatening such 

destruction as would constitute a major 

disaster, and for which the Federal 

Emergency Management Agency has 

approved a fire management assistance 

declaration in accordance with 

regulatory criteria at 44 CFR 204.21 (see 

http://www.fema.gov/news/ 

disasters.fema#sev2 for a list of 

declarations); or (3) An incident for 

which the National Operations Center 

(NOC), through the National Response 

Coordination Center (NRCC), 

coordinates the activation of the 

appropriate Emergency Support 

Functions and the Secretary of 

Homeland Security has designated a 

Federal Resource Coordinator (FRC) to 

manage Federal resource support. Each 

of these three types of declarations is 

discussed below. 

Stafford Act Major Disaster or 

Emergency Declaration 

The Robert T. Stafford Disaster Relief 

and Emergency Assistance Act, 42 

U.S.C. 5121 through 5207 (The Stafford 

Act), and its implementing regulations 

at 44 CFR part 206, set forth a process 

for a Governor to request the President 

to declare a major disaster or 

emergency. Key points of the process are 

set forth below: 

• If an event is beyond the combined 

response capabilities of the State and 

affected local governments; and 

• If, based on the findings of a joint 

Federal-State-local Preliminary Damage 

Assessment (PDA), the damage is of 

sufficient severity and magnitude to 

warrant assistance under the Stafford 

Act. In a particularly fast-moving or 

clearly devastating disaster, there may 

be an expedited declaration, and the 

PDA may be deferred until after the 

declaration. 

• The President may direct 

emergency assistance without a 

Governor’s request if an incident occurs 

that involves a subject area that is 

exclusively or preeminently the 

responsibility of the United States. The 

President will consult the Governor of 

any affected State, if practicable. 

• FEMA may provide accelerated 

Federal assistance and support where 

necessary to save lives, prevent human 

suffering, or mitigate severe damage, 

even in the absence of a specific request. 

(The Governor of the affected State will 

be consulted if practicable, but this 

consultation shall not delay or impede 

the provision of such rapid assistance.) 

Fire Management Assistance 

Declarations 

A request for a fire management 

assistance declaration is made by the 

Governor of a State to FEMA while a fire 

is burning uncontrolled. FEMA 

develops a Regional summary and 

approves or denies the State’s request 

based on: 

• The conditions that existed at the 

time of the State’s request; 

• Whether or not the fire or fire 

complex threatens such destruction as 

would constitute a major disaster. 

There are four criteria FEMA uses to 

evaluate the threat posed by a fire or fire 

complex: 

• Threat to lives and improved 

property, including threats to critical 

facilities/infrastructure, and critical 

watershed areas; 

• Availability of State and local 

firefighting resources; 

• High fire danger conditions, as 

indicated by nationally accepted indices 

such as the National Fire Danger Ratings 

System; and 

• Potential major economic impact. 

After rendering a determination, 

FEMA notifies the State. 

Designation of Federal Resource 

Coordinator in Non-Stafford Act 

Situations 

The Department of Homeland 

Security (DHS) sometimes takes action 

to support a Federal department or 

agency that has requested DHS 

assistance in handling a disaster that 

falls under the requesting department or 

agency’s jurisdiction. Key operational 

units that may be activated include the 

National Response Coordination Center 

(NRCC), Regional Response 

Coordination Center (RRCC), and Joint 

Field Office (JFO). 

Federal departments and agencies 

routinely manage the response to 

incidents under their statutory or 

executive authority that do not require 

the assistance of other Federal agencies. 

When a Federal entity with primary 

responsibility and authority for 

handling an incident requires 

assistance, that agency may request DHS 

coordination of Federal multiagency 

assistance. In such cases, DHS 

coordinates assistance using the 

procedures and structures within the 

National Response Framework. 

Generally, the requesting agency funds 

the participation of other Federal 

departments and agencies in accordance 

with provisions of the Economy Act 

unless other pertinent authorities exist. 

To initiate Federal-to-Federal support, 

the requesting agency submits a request 

for assistance to the DHS Executive 

Secretary via the National Operations 

Center (NOC). Requests include a 

summary of the situation, types and 

amount of resources needed, financial 

information, and any other appropriate 

details. 

Upon approval of the request, the 

Secretary of Homeland Security issues 

an operations order to the NOC. The 

NOC, through the NRCC, coordinates 

the activation of the appropriate 

Emergency Support Functions. The 

Secretary of Homeland Security 

designates a Federal Resource 

Coordinator (FRC) to manage Federal 

resource support. In circumstances 

requiring extraordinary coordination, 

the Secretary may appoint a Principal 

Federal Official to serve as his or her 

representative in the field. 

The requesting agency designates a 

senior official to work in coordination 

with the FRC as part of the Unified 

Coordination Group to identify and 

define specific support requirements. 

The requesting agency also provides 

comptrollers to the NRCC, RRCC, and 

JFO, as appropriate, to oversee financial 

management activities. An RRCC may 

be fully or partially activated to 

facilitate the deployment of resources 

until a JFO is established. Facilities, 

such as mobilization centers, may be 

established to accommodate personnel, 

equipment, and supplies. Federal 

agencies provide resources under 

interagency reimbursable agreements or 

their own authorities. 

Although the Department considered 

establishment of separate disaster 

declaration standards applicable only to 

section 692, it was determined not to be 

feasible or practicable. Declaration of a 

disaster under such separate 692 

standards would likely confuse the 

public in the circumstance where the 

President or other recognized officials 

did not make a declaration for the same 

incident under the Stafford Act or other 

pre-existing authority. 

The limitations proposed for this 

amendment to the HSAR are in addition 

to, and do not replace, the Federal 

Acquisition Regulation (FAR) 

limitations on pass-through charges at 

FAR 15.408(n). 

IV. Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) 

This proposed rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866. The Office of 

Management and Budget has not 

reviewed it under that Order. This 

proposed rule is not a major rule under 

5 U.S.C. 804. 


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B. Small Entities 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601–612), we have 

considered whether this proposed rule 

would have a significant economic 

impact on a substantial number of small 

entities. The term ‘‘small entities’’ 

comprises small businesses, not-forprofit organizations that are 

independently owned and operated and 

are not dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. This 

rule does not duplicate, overlap, or 

conflict with other federal rules. 

We do not expect this proposed rule 

to have a significant economic impact 

on a substantial number of small entities 

within the meaning of the RFA because 

the rule is limited to cost 

reimbursement acquisitions in support 

of response to or recovery from declared 

disasters. During FY 2008, although 

there were 141 declared disasters, the 

Federal Procurement Data System 

(FPDS) indicates that only 73 cost-type 

contract actions were awarded by DHS 

in response to declared disasters. Only 

31 separate contractors received these 

awards with 10 of these being small 

entities. We reviewed the NAICS (North 

American Industry Classification 

System) codes for these 10 small entities 

and found these small entities are not 

concentrated in any one industry and 

represent a relatively diverse cross 

section of the economy. For example, 

these small entities operate within 

NAICS code 541611 ‘‘Administrative 

Management and General Management 

Consulting Services,’’ NAICS code 

721211 ‘‘RV (Recreational Vehicle) Parks 

and Campgrounds,’’ NAICS code 423210 

‘‘Furniture Merchant Wholesalers,’’ and 

NAICS code 221122 ‘‘Electric Power 

Distribution.’’ The number of actions 

and the number of impacted contractors 

are very small proportions of the 

contracts awarded by the federal 

government and of the number of 

federal contractors. It is not anticipated 

that the rule would significantly affect 

the total number of cost reimbursement 

acquisitions awarded to small entities. 

When considering the economic 

impact of rulemakings, the RFA requires 

consideration of only the direct costs of 

a regulation on small entities that are 

required to comply with the regulation. 

Because the requirements of the clause 

promulgated by this rule includes 

requirements only for prime contractors, 

we believe the primary direct cost of 

this rule is the proposed requirement for 

submittal of information to DHS 

regarding the extent of subcontracting 

that is anticipated under a prime 

contract. We acknowledge that the 

limitation on subcontracting imposed by 

Section 692 of PKEMRA could have a 

distributional effect of shifting some of 

the work from subcontractors to prime 

contractors. However, distributional 

impacts of a rule across the economy are 

not considered an ‘‘economic impact’’ 

for the purposes of the RFA. For these 

reasons, DHS certifies under 5 U.S.C. 

605(b) that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities. 

DHS invites comments from small 

entities and other interested parties 

concerning the affected HSAR Parts 

3015, 3016 and 3052. Such comments 

should be submitted separately and 

should cite 5 U.S.C. 601, et seq. (HSAR 

Case 2009–005). Commenters should 

note that section 692 of PKEMRA was 

explicit in describing what types of 

contracts are within the scope of this 

rule and the maximum amount of 

subcontracting that would be allowed in 

these circumstances once this rule 

becomes effective. Consequently, there 

are no alternatives to the requirements 

of this rule that accomplish the stated 

objectives of section 692 of PKEMRA. 

C. Collection of Information 

The Paperwork Reduction Act (Pub. 

L. 104–13) applies to this proposed rule 

because the proposed rule contains 

information collection requirements. 

Accordingly, the Department will 

submit a change request reflecting the 

amended estimate for the affected 

burdens concerning this proposed rule 

to the Office of Management and Budget 

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

Annual Reporting Burden: 

Public reporting burden for this 

collection of information is estimated to 

average 4.20 hours per response, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

The annual reporting burden is 

estimated as follows: 

Respondents: 219. 

Responses per respondent: 1.67. 

Total annual responses: 365. 

Preparation hours per response: 4.2. 

Total response burden hours: 1,533. 

Request for Comments Regarding 

Paperwork Burden 

Submit comments, including 

suggestions for reducing this burden, 

not later than August 9, 2010. See 

ADDRESSES above for information on 

how to submit comments. If you submit 

comments by mail, please submit them 

in an unbound format, no larger than 

81⁄2; by 11 inches, suitable for copying 

and electronic filing. You may submit 

comments either by mail or via the 

Internet as identified in the ADDRESSES

section above; but to avoid duplication 

DHS requests that you submit comments 

and materials by only one method. If 

you would like DHS to acknowledge 

receipt of comments submitted by mail, 

please enclose a self-addressed, stamped 

postcard or envelope. DHS will consider 

all comments and material received 

during the comment period. We may 

change this proposed rule in view of 

comments submitted. Public comments 

are particularly invited on: Whether this 

collection of information is necessary 

for the proper performance of functions 

of the HSAR, and will have practical 

utility; whether our estimate of the 

public burden of this collection of 

information is accurate, and based on 

valid assumptions and methodology; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways in which we can 

minimize the burden of the collection of 

information on those who are to 

respond, through the use of appropriate 

technological collection techniques or 

other forms of information technology. 

Requester may obtain a copy of the 

justification from the Department of 

Homeland Security, Office of the Chief 

Procurement Officer, Acquisition Policy 

and Legislation Branch, Attn: Jeremy 

Olson, 245 Murray Drive, Bldg. 410 

(RDS), Washington, DC 20528. Please 

cite OMB Control Numbers 1600–0005, 

Offeror submissions and 1600–0003, 

Contractor submissions, HSAR Case 

2009–005, Limitations on 

Subcontracting in Emergency 

Acquisitions, in all correspondence. 

List of Subjects in 48 CFR Parts 3015, 

3016, and 3052 

Government procurement. 

Richard K. Gunderson, 

Acting Chief Procurement Officer, 

Department of Homeland Security. 

Accordingly, DHS proposes to amend 

(HSAR) 48 CFR parts 3015, 3016 and 

3052 as follows: 

1. The authority citation for 48 CFR 

parts 3015, 3016 and 3052 is revised to 

read as follows: 

Authority: 5 U.S.C. 301–302, 41 U.S.C. 

418b (a) and (b), 41 U.S.C. 414, 48 CFR part 

1, subpart 1.3, and DHS Delegation Number 

0700. 

PART 3015—CONTRACTING BY 

NEGOTIATION 

2. Add subpart 3015.4 consisting of 

section 3015.404–3 to read as follows: 


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32726 Federal Register / Vol. 75, No. 110 / Wednesday, June 9, 2010 / Proposed Rules 

Subpart 3015.4—Contract Pricing 

3015.404–3 Subcontracting pricing 

considerations. 

(d) For proposal submissions subject 

to limitations on subcontracting in 

accordance with (HSAR) 48 CFR 

3016.370, Limitations on subcontracting 

in emergency acquisitions, the 

contracting officer shall require offerors 

to submit sufficient evidence to permit 

a determination that the offeror will or 

will not award subcontracts that exceed 

65 percent of the cost (excluding 

indirect costs and fee) of the contract or 

the cost of any individual task or 

delivery order in accordance with 

(HSAR) 48 CFR 3016.370 and 3052.216– 

75. 

PART 3016—TYPES OF CONTRACTS 

3. Add subpart 3016.3 consisting of 

sections 3016.307 and 3016.370 to read 

as follows: 

Subpart 3016.3—Cost-Reimbursement 

Contracts 

3016.307 Contract clauses and solicitation 

provisions. 

(a) The contracting officer shall insert 

the clause at (HSAR) 48 CFR 3052.216– 

75, Limitations on Subcontracting in 

Emergency Acquisitions, in 

solicitations, contracts, task orders, and 

delivery orders that are cost 

reimbursement and exceed the 

simplified acquisition threshold if the 

action is entered into to facilitate 

response to or recovery from: 

(1) A major disaster or emergency 

declared by the President under Title IV 

or Title V of the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act, as amended (42 U.S.C. 

5121–5207) (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); 

(2) An uncontrolled fire or fire 

complex, threatening such destruction 

as would constitute a major disaster, 

and for which the Federal Emergency 

Management Agency has approved a fire 

management assistance declaration in 

accordance with regulatory criteria at 44 

CFR 204.21 (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); or 

(3) An incident for which the National 

Operations Center (NOC), through the 

National Response Coordination Center 

(NRCC), coordinates the activation of 

the appropriate Emergency Support 

Functions and the Secretary of 

Homeland Security has designated a 

Federal Resource Coordinator (FRC) to 

manage Federal resource support. 

(b) The contracting officer shall insert 

the provision at (HSAR) 48 CFR 

3052.216–76, Proposal Information on 

Limitations on Subcontracting in 

Emergency Acquisitions, in solicitations 

for cost reimbursement contracts, task 

orders, and delivery orders expected to 

exceed the simplified acquisition 

threshold if the action will be entered 

into to facilitate response to or recovery 

from: 

(1) A major disaster or emergency 

declared by the President under Title IV 

or Title V of the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act, as amended (42 U.S.C. 

5121–5207) (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); 

(2) An uncontrolled fire or fire 

complex, threatening such destruction 

as would constitute a major disaster, 

and for which the Federal Emergency 

Management Agency has approved a fire 

management assistance declaration in 

accordance with regulatory criteria at 44 

CFR 204.21 (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); or 

(3) An incident for which the National 

Operations Center (NOC), through the 

National Response Coordination Center 

(NRCC), coordinates the activation of 

the appropriate Emergency Support 

Functions and the Secretary of 

Homeland Security has designated a 

Federal Resource Coordinator (FRC) to 

manage Federal resource support. 

3016.370 Limitations on subcontracting in 

emergency acquisitions. 

(a) A prime contractor under a cost 

reimbursement contract or a task or 

delivery order shall not subcontract 

more than 65 percent of the cost 

(exclusive of indirect costs and fee) of 

the action except as provided in 

paragraph (b) of this subsection, if the 

dollar value of the action is above the 

simplified acquisition threshold and if 

the action is entered into to facilitate 

response to or recovery from: 

(1) A major disaster or emergency 

declared by the President under Title IV 

or Title V of the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act, as amended (42 U.S.C. 

5121–5207) (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); 

(2) An uncontrolled fire or fire 

complex, threatening such destruction 

as would constitute a major disaster, 

and for which the Federal Emergency 

Management Agency has approved a fire 

management assistance declaration in 

accordance with regulatory criteria at 44 

CFR 204.21 (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); or 

(3) An incident for which the National 

Operations Center (NOC), through the 

National Response Coordination Center 

(NRCC), coordinates the activation of 

the appropriate Emergency Support 

Functions and the Secretary of 

Homeland Security has designated a 

Federal Resource Coordinator (FRC) to 

manage Federal resource support. 

(b) The prohibition on subcontracting 

in paragraph (a) of this subsection does 

not apply if a determination is made 

that it is not feasible or practicable to 

apply it to a contract action or class of 

contract actions. The contracting officer 

shall prepare this determination and 

findings (D&F) using the format found 

in 48 CFR 3001.704. Review and 

approval of the D&F shall be one-level 

above the contracting officer unless a 

higher authority is established by the 

HCA. 

(c) For purposes of establishing the 

percent of cost of work of the contract 

or task or deliver order, see 48 CFR 

3052.216–75. 

PART 3052—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

4. Add sections 3052.216–75 and 

3052.216–76 to subpart 3052.2 to read 

as follows: 

3052.216–75 Limitations on 

subcontracting in emergency acquisitions. 

As prescribed in (HSAR) 48 CFR 

3016.307(a) insert the following clause 

in solicitations, orders and contracts: 

LIMITATIONS ON SUBCONTRACTING IN 

EMERGENCY ACQUISITIONS 

(TBD 2010) 

Section 692 of the Department of 

Homeland Security Appropriations Act, 

Fiscal Year 2007, limits the use of 

subcontractors by prime contractors on 

certain cost reimbursement acquisitions 

entered into with the Department of 

Homeland Security and its Components. 

(a) This acquisition is a cost 

reimbursement action subject to the 

limitations of section 692 for a requirement 

to facilitate the response to or recovery from: 

(1) A major disaster or emergency declared 

by the President under Title IV or Title V of 

the Robert T. Stafford Disaster Relief and 

Emergency Assistance Act, as amended (42 

U.S.C. 5121–5207) (see http://www.fema.gov/ 

news/disasters.fema#sev2 for a list of 

declarations); 

(2) An uncontrolled fire or fire complex, 

threatening such destruction as would 

constitute a major disaster, and for which the 

Federal Emergency Management Agency has 

approved a fire management assistance 

declaration in accordance with regulatory 

criteria at 44 CFR 204.21 (see http:// 

www.fema.gov/news/disasters.fema#sev2 for 

a list of declarations); or 

(3) An incident for which the National 

Operations Center (NOC), through the 


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National Response Coordination Center 

(NRCC), coordinates the activation of the 

appropriate Emergency Support Functions 

and the Secretary of Homeland Security has 

designated a Federal Resource Coordinator 

(FRC) to manage Federal resource support. 

(b) The Contractor agrees that in 

performance of the contract, no more than 65 

percent of the contract cost, excluding 

indirect costs incurred by the Contractor and 

fee paid to the Contractor, will be 

subcontracted. If this clause is included only 

in an individual task or delivery order or is 

made applicable only to certain task or 

delivery orders, this limit applies only to 

such task or delivery order(s) and not to the 

entire contract. 

(c) For purposes of this clause, the 

percentage of cost shall be calculated by 

determining all costs exclusive of indirect 

costs and fee being incurred by the 

Contractor, and comparing this value to the 

total dollars the Contractor allocates to 

subcontractors. 

(d) The Contractor shall notify the 

Contracting Officer in writing annually, on 

the anniversary date of contract award, the 

total cost (less indirect costs and fee) it has 

incurred for the previous 12-month period 

and the total subcontracted cost during the 

same period. If the percentage of costs 

incurred by its subcontractors exceeds 65 

percent, the Contractor’s notification shall 

include a description of the reason(s) the 

percentage of subcontracted cost exceeded 65 

percent and a plan for becoming compliant 

with the requirements of this clause. 

(e) If the Contractor expects at any time 

that compliance with these limits is not 

practicable or feasible, it shall submit a 

written request for waiver to the Contracting 

Officer with supporting rationale. 

(f) The requirements of this clause remain 

in effect unless the Contracting Officer 

provides notification to the Contractor that 

compliance with these limits has been 

excused in accordance with (HSAR) 48 CFR 

3016.370(b), or until the Contracting Officer 

provides notification that the requirements of 

this clause are no longer in force. 

(g) In addition to any other remedy 

available to the government, the Contractor’s 

ability to remain complaint with the terms of 

this clause may be included in past 

performance evaluations performed by 

Government personnel and considered by the 

Government when making future award 

decisions and failure to comply with its 

terms may result in disallowance of certain 

incurred costs. 

(h) Nothing in this clause shall be 

construed as superseding or nullifying other 

terms or conditions of the contract including 

those associated with socioeconomic goals 

and consent to subcontract requirements. 

(End of Clause) 

3052.216–76 Proposal information on 

limitations on subcontracting in emergency 

acquisitions. 

As prescribed in (HSAR) 48 CFR 

3016.307(b) insert the following 

provision in solicitations: 

PROPOSAL INFORMATION ON 

LIMITATIONS ON SUBCONTRACTING IN 

EMERGENCY ACQUISITIONS 

(TBD 2010) 

(a) The contract or order that is expected 

to be awarded based on this solicitation will 

include the clause at (HSAR) 48 CFR 

3052.216–75, in which the Contractor agrees 

that in performance of that contract or order, 

no more than 65 percent of the cost, 

excluding indirect costs and fee, will be 

subcontracted. 

(b) The proposal shall include acceptable 

evidence of the offeror’s ability to satisfy this 

requirement. For purposes of this evidence, 

the percentage of cost shall be calculated by 

determining all costs, exclusive of indirect 

costs and fee, being proposed by the offeror 

and comparing this value to the total cost the 

offeror plans to subcontract. Upon contract 

award and during contract performance, this 

percentage of costs shall be calculated 

similarly based on costs incurred by the 

Contractor and amounts awarded to its 

subcontractors. 

(c) If the offeror expects that compliance 

with these limits is not practicable or 

feasible, it shall include a written request for 

waiver in its offer along with supporting 

rationale. Offerors are hereby notified that an 

offer conditioned on acceptance of the waiver 

may not be considered for award, at the 

discretion of the Contracting Officer. 

(End of Provision) 

[FR Doc. 2010–13801 Filed 6–8–10; 8:45 am] 

BILLING CODE 4910–9B–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2009–0077; 

92220–1113–0000; ABC Code: C3] 

RIN 1018–AW63 

Endangered and Threatened Wildlife 

and Plants; Establishment of a 

Nonessential Experimental Population 

of Sonoran Pronghorn in 

Southwestern Arizona 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule: reopening of the 

public comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the public comment period 

on our February 4, 2010, proposed rule 

to reestablish the Sonoran pronghorn 

(Antilocapra americana sonoriensis) in 

southwestern Arizona. We proposed to 

reestablish the Sonoran pronghorn 

under section 10(j) of the Endangered 

Species Act of 1973, as amended (Act), 

and to classify that reestablished 

population as a nonessential 

experimental population (NEP). The 

proposed rule provided a plan for 

establishing the NEP and provided for 

allowable legal incidental taking of 

Sonoran pronghorn within the defined 

NEP area. A draft environmental 

assessment (EA) on this proposed action 

was also made available for comment. 

This action will provide all interested 

parties with an additional opportunity 

to submit comments on the proposed 

rule to reestablish Sonoran pronghorn 

into southwest Arizona and its 

accompanying draft EA. Information 

previously submitted need not be 

resubmitted as it has already been 

incorporated into the public record and 

will be fully considered in the final rule. 

DATES: To allow us adequate time to 

consider and incorporate submitted 

information into our review, comments 

and information must be submitted on 

or before July 9, 2010. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R2– 

ES–2009–0077; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

FOR FURTHER INFORMATION CONTACT: 

Curtis McCasland, Refuge Manager, 

Cabeza Prieta National Wildlife Refuge, 

1611 North Second Avenue, Ajo, AZ 

85321; by telephone (520–387–6483) or 

by facsimile (520–387–5359). If you use 

a telecommunications device for the 

deaf (TDD), please call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

On February 4, 2010, we published a 

proposed rule to reestablish the Sonoran 

pronghorn, a federally listed endangered 

mammal, into its historical habitat in 

King Valley, Kofa National Wildlife 

Refuge (Kofa NWR), in Yuma County, 

and to the Barry M. Goldwater Range— 

East (BMGR–E), in Maricopa County, in 

southwestern Arizona (75 FR 5732). At 

this time, we are reopening the public 

comment period for the proposed NEP 

and draft EA for a period of 30 days. For 

more information on the biology, 

habitat, and range of the Sonoran 

pronghorn, please refer to our previous 

proposed rule published in the Federal 

Register on February 4, 2010 (75 FR 

5732). 

Public Comments 

We, the U.S. Fish and Wildlife 

Service (Service), published a proposed 


erowe on DSK5CLS3C1PROD with PROPOSALS-1