57580 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

Issued on: September 29, 2008. 

David Kelly, 

Acting Administrator, National Highway 

Traffic Safety Administration. 

Meredith Attwell Baker, 

Acting Assistant Secretary for 

Communications and Information. 

[FR Doc. E8–23266 Filed 10–2–08; 8:45 am] 

BILLING CODE 4910–59–C 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 501, 515, and 552 

[GSAR Case 2008–G506; Docket 2008–0007; 

Sequence 23] 

RIN 3090–AI76 

General Services Acquisition 

Regulation; GSAR Case 2008–G506; 

Rewrite of GSAR Part 515, Contracting 

by Negotiation 

AGENCY: Office of the Chief Acquisition 

Officer, General Services 

Administration (GSA). 

ACTION: Proposed rule. 

SUMMARY: The General Services 

Administration (GSA) is proposing to 

amend the General Services Acquisition 

Regulation (GSAR) to revise language 

that provides requirements for 

contracting by negotiation. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat on or before December 2, 

2008 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by GSAR Case 2008–G506 by 

any of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘GSAR Case 2008–G506’’ 

under the heading ‘‘Comment or 

Submission’’. Select the link ‘‘Send a 

Comment or Submission’’ that 

corresponds with GSAR Case 2008– 

G506. Follow the instructions provided 

to complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘GSAR Case 2008–G506’’ on your 

attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW, Room 4041, 

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite GSAR Case 2008–G506 in 

all correspondence related to this case. 

All comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT For 

clarification of content, contact Mr. 

Michael O. Jackson at (202) 208–4949. 

For information pertaining to the status 

or publication schedules, contact the 

Regulatory Secretariat (VPR), Room 

4041, GS Building, Washington, DC 

20405, (202) 501–4755. Please cite 

GSAR Case 2008–G506. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The General Services Administration 

(GSA) is amending the General Services 

Administration Acquisition Regulation 

(GSAR) to revise sections of GSAR part 

515 that provide requirements for 

contracting by negotiation. 

This rule is a result of the General 

Services Administration Acquisition 

Manual (GSAM) Rewrite initiative 

undertaken by GSA to revise the GSAM 

to maintain consistency with the FAR 

and to implement streamlined and 

innovative acquisition procedures that 

contractors, offerors, and GSA 

contracting personnel can utilize when 

entering into and administering 

contractual relationships. The GSAM 

incorporates the GSAR as well as 

internal agency acquisition policy. 

GSA will rewrite each part of the 

GSAR and GSAM, and as each GSAR 

part is rewritten, will publish it in the 

Federal Register. 

This rule covers the rewrite of GSAR 

Part 515. The specific changes are as 

follows: 

• GSAR 501.106 - Added Control 

Number 3090–0163 as a cross reference 

for 515.201–1. 

• GSAR 515.204—Added a paragraph 

to specify that the senior procurement 

executive is the designee per FAR 

15.204(e). 

• GSAR 515.204–1—Moved 

paragraph (a) to 515.204. Renumbered 

remaining paragraphs and references 

accordingly. 

• GSAR 515.205—Added ‘‘or unless 

the incumbent contractor is otherwise 

ineligible for the award’’ to advise 

contracting officers that they are not 

obligated to include an offeror in the 

competition if they are not eligible to 

compete. 

• GSAR 515.209–70, Examination of 

records by GSA clause— 

a. In paragraph (b), changed ‘‘You’’ to 

‘‘The contracting officer’’ eliminated the 

dashes in ‘‘Assistant Inspector GeneralAuditing’’ and ‘‘Regional Inspector 

General-Auditing’’; and replaced each 

dash with a ‘‘for’’; and 

b. Paragraphs (c) and (d) were 

trasferred to Part 538 because they only 

pertain to Federal Supply Schedule 

(FSS) Multiple Award Schedule (MAS). 

• 515.305, Proposal evaluation— 

a. Transferred paragraph (a), 

renumbered it 515.208–70 and made it 

non-regulatory; 

b. Transferred paragraph (b), 

renumbered it 515.305–71 and made it 

non-regulatory; 

c. Made 515.305–70 non-regulatory; 

and 

d. The text made non-regulatory and 

renumbered to 515.208–70 and 

515.305–71, as well as the text that was 

formerly regulatory at 515.305–70, the 

team decided that it did not affect the 

public and was only applicable 

internally to GSA. 

• 515.408, Solicitation provisions 

and contract clauses—Transferred to 

GSAM Part 538 because it is only 

applicable to the Multiple Award 

Schedules Program. This proposed 

revision also includes the CSP–1 form. 

• 515.7002, Procedures— 

a. Replaced ‘‘You’’ with ‘‘Contracting 

Officer’’ throughout the clause. Also 

changed ‘‘Base your determination’’ to 

‘‘This determination should be based’’; 

b. In paragraph (a) changed FAR 

reference ‘‘14.202–4(g)’’ to ‘‘14.202–4(f)’’ 

and changed ‘‘However, qualifications’’ 

to ‘‘Samples are not requested. Any 

samples submitted with’’. This is to 

include minor editorial changes 

suggested by the Advanced Notice of 

Public Rulemaking; and 

c. In paragraph (b)(1) deleted 

‘‘52.214–20’’ and replaced it with 

‘‘552.214–72’’. Deleted the remainder of 

the paragraph. 

• 552.215–71—Transferred to Part 

538 because of the proposed move in 

515.209–70(c) and (d). 

• 552.215–72—Transferred to Part 

538 because of the proposed move in 

515.408. 

As a result of the rewrite of GSAM 

Part 515, certain text and clauses such 

as 552.215–71, Examination of Records 

by GSA (Multiple Award Schedule), and 

552.215–72, Price Adjustment—Failure 

to Provide Accurate Information, were 

transferred to the GSAM rewrite team 

handling the rewrite of GSAM Part 538. 

The 538 team was assembled with GSA 

personnel who have experience in 

dealing with GSAM Part 538, including 

personnel from GSA’s Federal 

Acquisition Service, which is the GSA 

component responsible for GSA’s 

Multiple Award Schedules. GSA 

established a process in the rewrite 

initiative where text and clauses that 

were found more suited to be allocated 

to other parts of the GSAM were sent to 

the other rewrite teams for their analysis 

and incorporation into their assigned 

rewrite parts. 


jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 57581 

Discussion of Comments 

Nine comments covering Part 515 

were received in response to the 

Advanced Notice of Proposed 

Rulemaking published in the Federal 

Register at 71 FR 7910, February 15, 

2006. A discussion of these comments is 

provided below: 

1. Comment: One commenter focused 

on the GSAR 552.238–75, Price 

Reductions (currently May 2004) clause, 

the Commercial Sales Practices Format 

(CSPF) in GSAR 515.408, and the Figure 

515.4 Instructions that accompany 

them. 

Response: This comment was 

transferred to the GSAM part 538 

rewrite team. 

2. Comment: Another commenter 

believes there is value in consistency— 

a greater likelihood of driving fair prices 

among all contracts for a type of product 

or service. One area for consistency is in 

the data collected in CSPF charts. GSA’s 

sample format does a commendable job 

toward that goal but can be improved. 

Response: This comment was 

transferred to the GSAM part 538 

rewrite team. 

3. Comment: GSAR should resolve 

how the requirement to annually update 

the Central Contractor Registration 

(CCR) impacts the position that small 

business size status is as of the time the 

offer is submitted. The commenter 

recommends that GSAR prescribe 

language to insert in GSA Schedule 

price lists on this topic. The language 

would inform agencies that 

notwithstanding data in CCR, for 

purposes of ordering against the 

schedule a contractor is small for the 5 

year period of the schedule contract. 

Schedule contractors are required to 

recertify size status at the time of a 

renewal. 

Response: This comment was 

transferred to the GSAM part 538 

rewrite team. 

4. Comment: Section 515.305(d)(1) of 

the GSAM discusses the requirement of 

using (‘‘must use’’) PPIRS (Past 

Performance Information Retrieval 

System). It goes on to say that a 

contracting officer ‘‘may use’’ 

questionnaires tailored to the 

circumstances, interviews, and other 

sources. On the other hand, FAR Part 

15.203(3) specifically indicates what 

past performance evaluations ‘‘shall 

address.’’ This includes contractor’s 

record of conforming to contract 

requirements and to standards of good 

workmanship; contractor’s record of 

forecasting and controlling costs; 

contractor’s adherence to contract 

schedules, including administrative 

aspects of performance; contractor’s 

history of reasonable and cooperative 

behavior and commitment to customer 

satisfaction; and generally, contractor’s 

business-like concern for interest of the 

customer. Additionally, FAR 9.105–1 

and 42.15 provide steps to conducting 

past performance survey, including 

checking List of Parties Excluded from 

Federal Procurement and NonProcurement Programs, reviewing 

previous pre-award survey reports, and 

requesting information from other 

government offices. The FAR seems to 

be substantially more specific in nature 

than the GSAM. 

Response: PPIRS is a government 

wide system intended to supplement 

past performance evaluations. The use 

of PPIRS as directed by GSAM does not 

replace the requirement to follow the 

guidance in the applicable parts of the 

FAR regarding past performance 

evaluations. We also note that the FAR 

does not contain 15.203(3), as 

referenced in the commenter’s 

comment. 

5. Comment: 515.403–4, Requiring 

cost or pricing data (10 U.S.C. 2306a 

and 41 U.S.C. 254b) - To determine if a 

contract action meets the threshold at 

FAR 15.403–4 for requesting cost and 

pricing data, consider the value of the 

action plus any priced options. Exercise 

of a priced option is not a price 

adjustment and does not require 

submission of cost and pricing data. 

GSAR should be revised to state what 

the threshold is. 

Response: Do not concur. The FAR 

specifies the threshold. 

6. Comment: 515.306, Exchanges with 

offerors after receipt of proposals. Limit 

access to Government cost estimates to 

Government personnel whose official 

duties require knowledge of the 

estimate. During negotiations, you may 

disclose part or all of the Government 

estimate under FAR 15.306(e) when 

necessary to arrive at a fair and 

reasonable price. After award, you may 

reveal the total amount of the 

independent Government estimate. 

More information should be included to 

explain the various types of exchanges 

that can be conducted with offerors. 

Response: Do not concur. FAR 

15.306(e) only places limits on 

exchanges. It is up to the contracting 

officer to use their discretion based on 

the exceptions cited in the FAR to 

determine the content of any exchanges 

with offerors. 

7. Comment: Appendix 515A—Source 

Selection Procedures (This Appendix 

will replace GSA Order, Source 

Selection Procedures (APD P 2800.2)). 

The source selection procedures are 

being updated based on the FAR Part 15 

rewrite. Would be greatly beneficial to 

see this section completed. 

Response: Concur. Comment is taken 

under advisement. 

8. Comment: Clarify and revise the 

Commercial Sales Practices Format, 

including simplifying the provision and 

removing those requirements associated 

with the mechanism that represents the 

pricing relationship between the 

Government and the basis of award 

customer (or category of customers) that 

pose undue administrative burden. 

Response: The Commercial Sales 

Practices format will be addressed in 

GSAM 538. 

9. Comment: Revise the GSAR to 

address the procurement practice 

known as ‘‘reverse auctions’’. While 

GSA supports innovative competitive 

techniques, GSA is concerned about the 

implication that auction techniques 

should be required even to the extent 

practicable, for the purchase of 

commercial items, and in particular not 

all commercial services, lend 

themselves to the ‘‘price only’’ bidding 

used in auction and reverse auction 

techniques. 

Response: Office of Federal 

Procurement Policy (see memo, 

‘‘Government-wide Survey on the Use of 

Reverse Auctions’’, dated November 27, 

2007) has initiated a review of the 

government’s use of commercially 

available online procurement services, 

including reverse auctions. Based on 

their findings GSA may consider 

including guidance in the GSAR. 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

804. 

B. Regulatory Flexibility Act 

The General Services Administration 

does not expect this proposed 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 the revisions are not considered 

substantive. The revisions only update 

and reorganize existing coverage. An 

Initial Regulatory Flexibility Analysis 

has, therefore, not been performed. We 

invite comments from small businesses 

and other interested parties. GSA will 

consider comments from small entities 

concerning the affected GSAR Parts 501, 

515, and 552 in accordance with 5 

U.S.C. 610. Interested parties must 

submit such comments separately and 

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

case 2008–G506), in all correspondence. 


jlentini on PROD1PC65 with PROPOSALS
57582 Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply; however, these changes to the 

GSAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Number 

3090–0027. 

List of Subjects in 48 CFR Parts 501, 

515, and 552 

Government procurement. 

Dated: September 19, 2008. 

Edward C. Loeb, 

Deputy Director, Office of Acquisition Policy. 

Therefore, GSA proposes to amend 48 

CFR parts 501, 515, and 552 as set forth 

below: 

1. The authority citation for 48 CFR 

parts 501, 515, and 552 is revised to 

read as follows: 

Authority: 40 U.S.C. 121(c). 

PART 501—GENERAL SERVICES 

ADMINISTRATION ACQUISITION 

REGULATION SYSTEM 

501.106 [Amended] 

2. Amend section 501.106, in the 

table, by adding in numerical sequence, 

GSAR Reference ‘‘515.201–1’’ and its 

corresponding OMB Control Number 

‘‘3090–0163’’. 

3. Revise Part 515 to read as follows: 

PART 515—CONTRACTING BY 

NEGOTIATION 

Subpart 515.2—Solicitation and Receipt of 

Proposals and Information 

Sec. 

515.204 Contract format. 

515.204–1 Uniform contract format. 

515.205 Issuing solicitations. 

515.209 Solicitation provisions and 

contract clauses. 

515.209–70 Examination of records by GSA 

clause. 

Subpart 515.5—Preaward, Award, and 

Postaward Notifications, Protests, and 

Mistakes 

515.506 Postaward debriefing of offerors. 

Subpart 515.70—Use of Samples 

515.7002 Procedures. 

Subpart 515.2—Solicitation and 

Receipt of Proposals and Information 

515.204 Contract format. 

(a) The uniform contract format is not 

required for leases of real property. 

(b) The Senior Procurement Executive 

is the agency head’s designee for the 

purposes of granting exemptions to the 

use of the Uniform Contract Format (see 

FAR 15.204(e)). 

515.204–1 Uniform contract format. 

Each solicitation and contract must 

include the two notices in paragraphs 

(a) and (b) of this subsection, except that 

acquisitions of leasehold interests in 

real property, must include only the 

notice in paragraph (a). 

(a) The information collection 

requirements contained in this solicitation/ 

contract are either required by regulation or 

approved by the Office of Management and 

Budget pursuant to the Paperwork Reduction 

Act and assigned OMB Control No. 3090– 

0163. 

(b) GSA’s hours of operation are 8:00 a.m. 

to 4:30 p.m. Requests for preaward 

debriefings postmarked or otherwise 

submitted after 4:30 p.m. will be considered 

submitted the following business day. 

Requests for postaward debriefings delivered 

after 4:30 p.m. will be considered received 

and filed the following business day. 

515.205 Issuing solicitations. 

Potential sources, as used in FAR 

15.205, include both of the following: 

(a) The incumbent contractor, except 

when its written response to the notice 

of contract action under FAR Subpart 

5.2 states a negative interest or unless 

the incumbent contractor is otherwise 

ineligible for the award. 

(b) Offerors that responded to recent 

solicitations for the same or similar 

items. 

515.209 Solicitation provisions and 

contract clauses. 

515.209–70 Examination of records by 

GSA clause. 

Clause for Other than Multiple Award 

Schedules 

(a) For other than multiple award 

schedule (MAS) contracts, insert the 

clause at 552.215–70, Examination of 

Records by GSA, in solicitations and 

contracts over $100,000, including 

acquisitions of leasehold interests in 

real property, that meet any of the 

conditions listed below: 

(1) Involve the use or disposition of 

Government-furnished property. 

(2) Provide for advance payments, 

progress payments based on cost, or 

guaranteed loan. 

(3) Contain a price warranty or price 

reduction clause. 

(4) Involve income to the Government 

where income is based on operations 

under the control of the contractor. 

(5) Include an economic price 

adjustment clause where the adjustment 

is not based solely on an established, 

third party index. 

(6) Are requirements, indefinitequantity, or letter type contracts as 

defined in FAR Part 16. 

(7) Are subject to adjustment based on 

a negotiated cost escalation base. 

(8) Contain the provision at FAR 

52.223–4, Recovered Material 

Certification. 

(b) The contracting officer may 

modify the clause at 552.215–70 to 

define the specific area of audit (e.g., the 

use or disposition of Governmentfurnished property, compliance with the 

price reduction clause). Counsel and the 

Assistant Inspector General for Auditing 

or Regional Inspector General for 

Auditing, as appropriate, must concur 

in any modifications to the clause. 

(c) Solicitation notice. Include in the 

solicitation a notice substantially as 

follows: 

Notice About Releasing Proposals 

(1) The Government intends to disclose 

proposals received in response to this 

solicitation to nongovernment evaluators. 

(2) Each evaluator will sign and provide to 

GSA a ‘‘Conflict of Interest Acknowledgment 

and Nondisclosure Agreement.’’ 

Subpart 515.5—Preaward, Award, and 

Postaward Notifications, Protests, and 

Mistakes 

515.506 Postaward debriefing of offerors. 

For purposes of determining the date 

of receipt of a request for a postaward 

debriefing, GSA’s hours of operation are 

8:00 a.m. to 4:30 p.m. Requests received 

after 4:30 p.m. will be considered 

received the following business day. 

Subpart 515.70—Use of Samples 

515.7002 Procedures. 

(a) Unsolicited samples. The reference 

to FAR 14.404–2(d) in FAR 14.202–4(f) 

does not apply. Use the following when 

contracting by negotiation: ‘‘Samples are 

not requested. Any samples submitted 

with the proposal that are at variance 

with the Government’s requirements, 

constitute deficiencies. Resolve these as 

provided in FAR 15.306.’’ 

(b) Solicitation requirements. (1) Use 

the clause at GSAR 552.214–72. 

(2) In addition to listing subjective 

characteristics that cannot adequately be 

described in the specification, the 

contracting officer may list and evaluate 

objective characteristics. To include 

objective characteristics, the contracting 

officer must determine that examination 

of such characteristics is essential to the 

acquisition of an acceptable product. 

This determination should be based on 

past experience or other valid 

considerations. 

(c) FAR 52.215–1(c)(3) applies to 

samples received after the time set for 

receipt of offers. 


jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 73, No. 193 / Friday, October 3, 2008 / Proposed Rules 57583 

PART 552–SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

552.215–71 [Redesignated as 552.238–XX] 

552.215–72 [Redesignated as 552.238–YY] 

4. Sections 552.215–71 and 552.215– 

72 are redesignated as 552.238–XX and 

552.238–YY, respectively. 

[FR Doc. E8–22745 Filed 10–2–08; 8:45 am] 

BILLING CODE 6820–61–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 0809161218–81253–01] 

RIN 0648–AX23 

Listing Endangered and Threatened 

Wildlife and Designating Critical 

Habitat; 90–day Finding for a Petition 

to Revise the Critical Habitat 

Designation for the Hawaiian Monk 

Seal 

AGENCY: National Marine Fisheries 

Service (NMFS), NationalOceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of petition finding; 

request for information and comments. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), announce a 

90–day finding for a petition to revise 

Hawaiian monk seal (Monachus 

schauinslandi) critical habitat under the 

Endangered Species Act (ESA) of 1973, 

as amended. The Hawaiian monk seal is 

listed as endangered throughout its 

range, and currently designated critical 

habitat consists of all beach areas, sand 

spits, and islets, including all beach 

crest vegetation to its deepest extent 

inland, lagoon waters, inner reef waters, 

and ocean waters out to a depth of 20 

fathoms (36.6m) around specific areas in 

the Northwestern Hawaiian Islands. The 

petition seeks to include key beach 

areas, sand spits, and islets, including 

all beach crest vegetation to its deepest 

extent inland, lagoon waters, inner reef 

waters, and ocean waters out to a depth 

of 200 meters around the main 

Hawaiian Islands, and to extend critical 

habitat designation in the Northwestern 

Hawaiian Islands to Sand Island and 

ocean waters out to a depth of 500 

meters. We are initiating a review of 

currently designated critical habitat of 

the species to determine whether 

revision is warranted. To ensure a 

comprehensive review, we solicit 

information and comments pertaining to 

this species’ essential habitat needs 

from any interested party. 

DATES: Written comments and 

information related to this petition 

finding must be received [see 

ADDRESSES] by December 2, 2008. 

ADDRESSES: You may submit comments, 

identified by [0648–AX23], by any one 

of the following methods: (1) Electronic 

Submissions: Submit all electronic 

public comments via the Federal 

eRulemaking Portal at http:// 

www.regulations.gov; (2) Fax: 808–973– 

2941, attention: Krista Graham; or (3) 

mail: addressed to Krista Graham, 

National Marine Fisheries Service, 

Pacific Islands Regional Office, 

Protected Resources Division, 1601 

Kapiolani Boulevard Suite 1110, 

Honolulu, HI 96814. 

All comments received are a part of 

the public record and will generally be 

posted to httphttp:// 

www.regulations.gov without change. 

All personal identifying information (for 

example, name, address, etc.) 

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 

PDF file formats only. 

Interested persons may obtain more 

information about critical habitat 

designated for the Hawaiian monk seal 

online at the NMFS Pacific Islands 

Regional Office website: http:// 

www.fpir.noaa.gov/PRD/ 

prdlcriticallhabitat.html 

FOR FURTHER INFORMATION CONTACT: 

Krista Graham by phone 808–944–2238, 

fax 808–973–2941, or e-mail 

krista.graham@noaa.gov; Lance Smith 

by phone 808–944–2258, fax 808–973– 

2941, or e-mail lance.smith@noaa.gov; 

Lisa Van Atta by phone 808–944–2257, 

fax 808–973–2941, or e-mail 

alecia.vanatta@noaa.gov; or Marta 

Nammack by phone 301–713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Critical habitat is defined in the ESA 

(16 U.S.C. 1531 et seq.) as: 

‘‘(i) the specific areas within the 

geographical area currently occupied by the 

species, at the time it is listed... on which are 

found those physical or biological features (I) 

essential to the conservation of the species 

and (II) which may require special 

management considerations or protection; 

and (ii) specific areas outside the 

geographical area occupied by the species at 

the time it is listed upon a determination by 

the Secretary that such areas are essential for 

the conservation of the species.’’ 

Our implementing regulations (50 

CFR 424.12) describe those essential 

physical and biological features to 

include, but not limited to: (1) space for 

individual and population growth, and 

normal behavior; (2) food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring; and 

(5) habitats that are protected from 

disturbance or are representative of the 

historic geographical and ecological 

distribution of a species. We are 

required to focus on the primary 

constituent elements (PCEs) which best 

represent the principal biological or 

physical features. PCEs may include, 

but are not limited to: nesting grounds, 

feeding sites, water quality, tide, and 

geological formation. Our implementing 

regulations (50 CFR 424.02) define 

‘‘special management considerations or 

protection’’ as any method or procedure 

useful in protecting physical and 

biological features of the environment 

for the conservation of the species. 

Section 4(b)(2) of the ESA requires us 

to designate and make revisions to 

critical habitat for listed species based 

on the best scientific data available and 

after taking into consideration the 

economic impact, the impact on 

national security, and any other relevant 

impact, of specifying any particular area 

as critical habitat. The Secretary may 

exclude any particular area from critical 

habitat if he determines that the benefits 

of such exclusion outweigh the benefits 

of specifying such area as part of the 

critical habitat, unless he determines 

that the failure to designate such area as 

critical habitat will result in the 

extinction of the species concerned. We 

are required to consider whether the 

petition contains information indicating 

that areas petitioned contain physical 

and biological features essential to, and 

that may require special management to 

provide for, the conservation of the 

species. Section 4(b)(3)(D)(i) of the ESA 

requires us to make a finding as to 

whether a petition to revise critical 

habitat presents substantial scientific 

information indicating that the revision 

may be warranted. Our implementing 

regulations (50 CFR 424.14) define 

‘‘substantial information’’ as the amount 

of information that would lead a 

reasonable person to believe that the 

measure proposed in the petition may 

be warranted. In determining whether 

substantial information exists, we take 

into account several factors, including 


jlentini on PROD1PC65 with PROPOSALS