61296 Federal Register / Vol. 76, No. 192 / Tuesday, October 4, 2011 / Proposed Rules 

rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. The filing hours 

are 8 a.m. to 7 p.m. 

Æ Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

Æ U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Aaron Goldschmidt, Wireless 

Telecommunications Bureau, (202) 418– 

7146, or e-mail 

Aaron.Goldschmidt@fcc.gov. 

SUPPLEMENTARY INFORMATION: The FCC 

has established a Web site, http:// 

www.fcc.gov/pea, which contains 

information and downloadable 

documents relating to the PEA process, 

including the Draft PEA. The Web site 

also allows individuals to contact the 

Commission. See original published 

document (proposed rule published at 

76 FR 54422, September 1, 2011). 

Federal Communications Commission. 

Matthew Nodine, 

Chief of Staff, Wireless Telecommunications 

Bureau. 

[FR Doc. 2011–25576 Filed 9–30–11; 11:15 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 215, 225, and 252 

RIN 0750–AH42 

Defense Federal Acquisition 

Regulation Supplement: Contracting 

With the Canadian Commercial 

Corporation (DFARS Case 2011–D049) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

clarify the requirements for the 

Canadian Commercial Corporation to 

submit data other than certified cost or 

pricing data. 

DATES: Comment Date: Comments on 

the proposed rule should be submitted 

in writing to the address shown below 

on or before December 5, 2011, to be 

considered in the formation of a final 

rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2011–D049, 

using any of the following methods: 

Æ Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

entering ‘‘DFARS Case 2011–D049’’ 

under the heading ‘‘Enter keyword or 

ID’’ and selecting ‘‘Search.’’ Select the 

link ‘‘Submit a Comment’’ that 

corresponds with ‘‘DFARS Case 2011– 

D049.’’ Follow the instructions provided 

at the ‘‘Submit a Comment’’ screen. 

Please include your name, company 

name (if any), and ‘‘DFARS Case 2011– 

D049’’ on your attached document. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2011–D049 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Amy G. 

Williams, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check http:// 

www.regulations.gov, approximately 

two to three days after submission to 

verify posting (except allow 30 days for 

posting of comments submitted by 

mail). 

FOR FURTHER INFORMATION CONTACT: 

Amy G. Williams, telephone 703–602– 

0328. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This proposed rule implements a 

recommendation of a bilateral integrated 

product team on cost or pricing data, 

including representatives from the U.S. 

Government and Canada. 

With some exceptions, as provided at 

DFARS 225.870–1(c), the Canadian 

Commercial Corporation awards and 

administers DoD contracts with 

contractors located in Canada. 

DoD has waived the requirement for 

the Canadian Commercial Corporation 

and its subcontractors to submit 

certified cost or pricing data (see DFARS 

215.403–1(c)(4)(C)). However, the 

requirement to submit data other than 

certified cost or pricing data has not 

been waived for the Canadian 

Commercial Corporation and its 

subcontractors. The purpose of this rule 

is to clarify the requirement to submit 

data other than certified cost or pricing 

data. 

II. Discussion and Analysis 

Effective on October 1, 2010, the 

definitions in the Federal Acquisition 

Regulation (FAR) relating to cost or 

pricing data were revised (76 FR 53135, 

published August 30, 2010). The final 

rule under FAR Case 2005–036, FAC 

2005–45, redefined ‘‘cost or pricing 

data’’ to mean all cost or pricing data 

and added a new term for ‘‘certified cost 

or pricing data.’’ Previously, the term 

‘‘cost or pricing data’’ had been defined 

to mean only what is now defined as 

‘‘certified cost or pricing data.’’ 

Throughout the FAR, the term ‘‘cost or 

pricing data’’ was generally replaced 

with the new term ‘‘certified cost or 

pricing data.’’ The same final rule also 

replaced the term ‘‘information other 

than cost or pricing data’’ with the new 

term ‘‘data other than certified cost or 

pricing data.’’ The new definition of 

these terms in the FAR is significant 

because the conforming changes to the 

DFARS, currently being processed 

under DFARS Case 2011–D040, 

Definition of Cost or Pricing Data, are 

not yet implemented. Therefore, this 

rule includes conforming changes to 

DFARS 215.4, in order to ensure that it 

is clear that only submission of certified 

cost or pricing data has been waived for 

the Canadian Commercial Corporation 

and its subcontractors. 

FAR 15.402 and FAR 15.403–3 

address requiring data other than 

certified cost or pricing data. FAR 

15.402 emphasizes obtaining no more 

data than is necessary to establish a fair 

and reasonable price. Generally, no 

additional data is required from the 

offeror if the price is based on adequate 

price competition. FAR 

15.402(a)(2)(ii)(A) and FAR 15.403– 

3(a)(1)(iv) both address the exceptions 

to obtaining data related to prices, i.e., 

FAR 15.403–1(b)(1) (prices based on 

adequate price competition) or FAR 

15.403–1(b)(2) (prices set by law or 

regulation). None of these exceptions 

provides a general exception to the 

requirement to obtain data other than 

certified cost or pricing data based on a 

waiver of the requirement to provide 

certified cost or pricing data. In fact, 

FAR 15.403–3(a)(1)(ii) clearly states that 

in those acquisition that do not require 

certified cost or pricing data (e.g., when 

a waiver has been granted), the 

contracting officer shall obtain data 

other than certified cost or pricing data 

from the offeror to the extent necessary 

to determine a fair and reasonable price 

if the contracting officer determines that 

adequate data from sources other than 

the offeror are not available. FAR 

15.403–3(a)(1)(v) recommends 

consideration of the guidance in section 

3.3, chapter 3, volume I, of the Contract 

Pricing Reference Guide, available at 

http://www.acq.osd.mil/dpap/cpf/ 


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Federal Register / Vol. 76, No. 192 / Tuesday, October 4, 2011 / Proposed Rules 61297 

contract_pricing_reference_guides.html. 

The contracting officer would not 

usually require all of the listed items, 

but would select only those items 

necessary in order to determine that the 

price is fair and reasonable. 

In order to facilitate requests for data 

other than certified cost or pricing data 

when contracting with the Canadian 

Commercial Corporation, this rule 

proposes a new provision, Requirement 

for Submission of Data Other Than 

Certified Cost or Pricing Data— 

Canadian Commercial Corporation, for 

use in appropriate solicitations with the 

Canadian Commercial Corporation, and 

a comparable clause, Requirement for 

Submission of Data Other Than 

Certified Cost or Pricing Data— 

Modifications—Canadian Commercial 

Corporation, to be included in contracts 

to cover modifications that may require 

submission of data other than certified 

cost or pricing data. This provision and 

clause are a tailored version of Alternate 

IV of— 

• FAR 52.215–20, Requirements for 

Certified Cost or Pricing Data and Data 

Other than Certified Cost or Pricing 

Data; and 

• FAR 52.215–21, Requirements for 

Certified Cost or Pricing Data and Data 

Other than Certified Cost or Pricing 

Data—Modification. 

The provision and clause both require 

the following information: 

• Profit rate or fee (as applicable). 

• Analysis provided by Public Works 

and Government Services Canada to 

Canadian Commercial Corporation to 

determine a fair and reasonable price 

(comparable to the analysis required by 

FAR 15.404–1). 

• Data other than certified cost or 

pricing data necessary to permit an 

adequate determination by the U.S. 

contracting officer that the proposed 

price is fair and reasonable. (The U.S. 

contracting officer must insert a 

description of the data required, in 

accordance with the guidance at 

15.403–3(a)(1).) 

The rule prescribes use of this 

provision and clause in solicitations and 

contracts for sole source acquisitions 

from the Canadian Commercial 

Corporation that are expected to result 

in cost-reimbursement contracts 

expected to exceed the simplified 

acquisition threshold or fixed-price 

contracts expected to exceed $500 

million. The provision and clause may 

also be used in other solicitations and 

contracts if the head of the contracting 

activity, or designee no lower than one 

level above the contracting officer, 

determines that such data is needed in 

order to determine that the price is fair 

and reasonable (see FAR 15.403– 

3(a)(2)). 

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 

DoD does not expect this rule 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 it only impacts Canadian 

business concerns. No domestic entities 

will be impacted by this rule. For the 

definition of ‘‘small business’’, the 

Regulatory Flexibility Act refers to the 

Small Business Act, which in turn 

allows the U.S. Small Business 

Administration (SBA) Administrator to 

specify detailed definitions or 

standards. 5 U.S.C. 601(3) and 15 U.S.C. 

632(a). The SBA regulations at 13 CFR 

121.105 discuss who is a small business: 

‘‘(a)(1) Except for small agricultural 

cooperatives, a business concern eligible 

for assistance from SBA as a small 

business is a business entity organized 

for profit, with a place of business 

located in the United States, and which 

operates primarily within the United 

States or which makes a significant 

contribution to the U.S. economy 

through payment of taxes or use of 

American products, materials or labor.’’ 

Therefore, an initial regulatory 

flexibility analysis has not been 

performed. 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 2011–D049), in 

correspondence. 

V. Paperwork Reduction Act 

The rule contains 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); 

however, these changes to the DFARS 

do not impose additional information 

collection requirements to the 

paperwork burden previously approved 

under OMB Control Number 9000–0013, 

Cost or Pricing Data Requirements and 

Information Other Than Cost or Pricing 

Data. 

List of Subjects in 48 CFR Parts 215, 

225, and 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR parts 215, 225, and 

252 are amended as follows: 

1. The authority citation for 48 CFR 

parts 215, 225, and 252 continues to 

read as follows: 

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

chapter 1. 

PART 215—CONTRACTING BY 

NEGOTIATION 

2. Amend section 215.403–1 by 

revising the heading and revising 

paragraph (c)(4)(C) to read as follows: 

215.403–1 Prohibition on obtaining 

certified cost or pricing data (10 U.S.C. 

2306a and 41 U.S.C. chapter 35). 

* * * * * 

(c) * * * 

(4) * * * 

(C) DoD has waived the requirement 

for submission of certified cost or 

pricing data for the Canadian 

Commercial Corporation and its 

subcontractors (but see 215.408(3) and 

225.870–4(d)). 

* * * * * 

3. Amend section 215.408 by adding 

paragraph (3) to read as follows: 

215.408 Solicitation provisions and 

contract clauses. 

* * * * * 

(3) When contracting with the 

Canadian Commercial Corporation— 

(i) Use the provision at 252.215– 

70XX, Requirement for Data Other Than 

Certified Cost or Pricing Data— 

(A) In solicitations for sole source 

acquisitions that are— 

(1) Cost-reimbursement, if the 

contract value is expected to exceed the 

simplified acquisition threshold; or 

(2) Fixed-price, if the contract value is 

expected to exceed $500 million; or 

(B) In other solicitations, if the head 

of the contracting activity, or designee 


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61298 Federal Register / Vol. 76, No. 192 / Tuesday, October 4, 2011 / Proposed Rules 

no lower than one level above the 

contracting officer, determines that data 

other than certified cost or pricing data 

is needed in order to determine that the 

price is fair and reasonable (see FAR 

15.403–3(a)(2)); and 

(ii) Use the clause at 252.215–70YY, 

Requirement for Data Other Than 

Certified Cost or Pricing Data— 

Modifications—Canadian Commercial 

Corporation— 

(A) In solicitations and contracts for 

sole source acquisitions that are— 

(1) Cost-reimbursement, if the 

contract value is expected to exceed the 

simplified acquisition threshold; or 

(2) Fixed-price, if the contract value is 

expected to exceed $500 million; or 

(B) In other solicitations and 

contracts, if the head of the contracting 

activity, or designee no lower than one 

level above the contracting officer, 

determines that it is reasonably certain 

that data other than certified cost or 

pricing data will be needed in order to 

determine that the price of 

modifications is fair and reasonable (see 

FAR 15.403–3(a)(2)). 

PART 225—FOREIGN ACQUISITION 

4. Amend section 225.870–4 by 

redesignating paragraph (c) as paragraph 

(d) and adding new paragraph (c) to 

read as follows: 

225.870–4 Contracting procedures. 

* * * * * 

(c) Requirement for data other than 

certified cost or pricing data. (1) DoD 

has waived the requirement for 

submission of certified cost or pricing 

data for the Canadian Commercial 

Corporation and its subcontractors (see 

215.403–1(c)(4)(C)). 

(2) The Canadian Commercial 

Corporation is not exempt from the 

requirement to submit data other than 

certified cost or pricing data, as defined 

in FAR 2.101. In accordance with FAR 

15.403–3(a)(1)(ii), the contracting officer 

shall require submission of data other 

than certified cost or pricing data from 

the offeror, to the extent necessary to 

determine a fair and reasonable price. 

(3) The contracting officer shall use 

the provision at 252.215–70XX, 

Requirement for Data Other Than 

Certified Cost or Pricing Data— 

Canadian Commercial Corporation, and 

the clause at 252.215–70YY, 

Requirement for Data Other Than 

Certified Cost or Pricing Data— 

Modifications—Canadian Commercial 

Corporation, as prescribed at 

215.408(3)(i) and (ii), respectively. 

(4) Except for contracts described in 

225.870–1(c)(1) through (4), Canadian 

suppliers will provide required data 

other than certified cost or pricing data 

exclusively through the Canadian 

Commercial Corporation. 

* * * * * 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

5. Add section 252.215–70XX to read 

as follows: 

252.215–70XX Requirement for 

Submission of Data Other Than Certified 

Cost or Pricing Data—Canadian 

Commercial Corporation. 

As prescribed at 215.408(3), use the 

following provision: 

REQUIREMENT FOR SUBMISSION OF 

DATA OTHER THAN CERTIFIED 

COST OR PRICING DATA— 

CANADIAN COMMERCIAL 

CORPORATION (DATE) 

(a) Submission of certified cost or pricing 

data is not required. 

(b) Canadian Commercial Corporation shall 

obtain and provide the following: 

(1) Profit rate or fee (as applicable). 

(2) Analysis provided by Public Works and 

Government Services Canada to the Canadian 

Commercial Corporation to determine a fair 

and reasonable price (comparable to the 

analysis required at FAR 15.404–1). 

(3) Data other than certified cost or pricing 

data necessary to permit a determination by 

the U.S. Contracting Officer that the 

proposed price is fair and reasonable [U.S. 

Contracting Officer to insert description of 

the data required in accordance with 15.403– 

3(a)(1)]. 

(End of provision) 

6. Add section 252.215–70YY to read 

as follows: 

252.215–70YY Requirement for 

Submission of Data Other Than Certified 

Cost or Pricing Data—Modifications— 

Canadian Commercial Corporation. 

As prescribed at 215.408(3), use the 

following clause: 

REQUIREMENT FOR SUBMISSION OF 

DATA OTHER THAN CERTIFIED 

COST OR PRICING DATA— 

MODIFICATIONS—CANADIAN 

COMMERCIAL CORPORATION 

(DATE) 

(a) Submission of certified cost or pricing 

data is not required. 

(b) Canadian Commercial Corporation shall 

obtain and provide the following: 

(1) Profit rate or fee (as applicable). 

(2) Analysis provided by Public Works and 

Government Services Canada to the Canadian 

Commercial Corporation to determine a fair 

and reasonable price (comparable to the 

analysis required at FAR 15.404–1). 

(3) Data other than certified cost or pricing 

data necessary to permit a determination by 

the U.S. Contracting Officer that the 

proposed price is fair and reasonable [U.S. 

Contracting Officer to insert description of 

the data required in accordance with 15.403– 

3(a)(1)]. 

(End of clause.) 

[FR Doc. 2011–25237 Filed 10–3–11; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R1–ES–2008–0048; MO 92210–0–0008 

B2] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition To List the Lake Sammamish 

Kokanee Population of Oncorhynchus 

nerka as an Endangered or Threatened 

Distinct Population Segment 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of a 12-month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

12-month finding on a petition to list 

the Lake Sammamish kokanee, 

Oncorhynchus nerka, as an endangered 

or threatened species under the 

Endangered Species Act of 1973, as 

amended (Act). After review of all 

available scientific and commercial 

information, we find that the Lake 

Sammamish kokanee population is not 

a listable entity under the Act and, 

therefore, listing is not warranted. We 

ask the public to continue to submit to 

us any new information that becomes 

available concerning the taxonomy, 

biology, ecology, and status of Lake 

Sammamish kokanee, and to support 

cooperative conservation efforts for this 

population. 

DATES: The finding announced in this 

document was made on October 4, 2011. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov at docket number 

[FWS–R1–ES–2008–0048]. Supporting 

documentation we used to prepare this 

finding is available for public 

inspection, by appointment, during 

normal business hours at the U.S. Fish 

and Wildlife Service, Washington Fish 

and Wildlife Office, 510 Desmond 

Drive, SE., Suite 102, Lacey, WA 98503. 

Please submit any new information, 

materials, comments, or questions 

concerning this finding to the above 

address. 

FOR FURTHER INFORMATION CONTACT: Ken 

Berg, Manager, Project Leader, 

Washington Fish and Wildlife Office, 

U.S. Fish and Wildlife Service (see 


pmangrum on DSK3VPTVN1PROD with PROPOSALS-1