23374 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Rhonda Cundiff, Procurement Analyst, 

at (202) 501–0044 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at (202) 501– 

4755. Please cite FAR case 2008–023 in 

all correspondence. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The United States Government 

Accountability Office’s (GAO) decision 

in the matter of MCS Portable Restroom 

Service, B–299291, March 28, 2007, 

deals in part with the issue of when a 

sole source SDVOSB acquisition may be 

conducted. In this decision, GAO notes 

that the plain wording of FAR 19.1406 

may be unintentionally inconsistent 

with the Veterans Benefit Act of 2003 

and the Small Business Administration 

regulations that implement that Act. 

GAO concludes the intent of the FAR 

language is that one criterion for a sole 

source award is that the contracting 

officer does not have a reasonable 

expectation that two or more SDVOSBs 

will submit offers. The intent of the FAR 

language is not that a sole source 

acquisition is prohibited if more than 

one SDVOSB that could conceivably 

perform the work exists. 

The Councils have reviewed the 

language in question, FAR 19.1406(a)(1). 

The Councils have determined that in 

order to lessen the possibility of 

misinterpretation, the language should 

be revised to more closely mirror the 

Veterans Benefit Act of 2003 (15 U.S.C. 

657f). The proposed rule contains 

language that was revised accordingly. 

The language in FAR 19.1306(a)(1), 

which deals with sole source awards to 

HUBZone small business concerns 

based on 15 U.S.C. 657a(b), is currently 

the same as the language in FAR 

19.1406(a)(1). The Councils have 

determined that the language in 

19.1306(a)(1) should be revised in the 

same manner as the language in 

19.1406(a)(1). The intent in both cases is 

that one of the criterion for making a 

sole source award is that the contracting 

officer does not reasonably expect to 

receive offers from two or more 

concerns. Not revising the language in 

FAR 19.1306(a)(1) to match FAR 

19.1406(a)(1) will lead to confusion. 

There could be a presumption that the 

intent is to convey different meanings, 

when that is not the intent. Therefore, 

the proposed rule contains language that 

has been revised accordingly. 

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 Councils do 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 this 

revision is being done to clarify the 

intent of the existing language and is not 

a change in policy. An Initial Regulatory 

Flexibility Analysis has, therefore, not 

been performed. We invite comments 

from small businesses and other 

interested parties. The Councils will 

consider comments from small entities 

concerning the affected FAR Part 19 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. (FAR case 2008–023), in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed changes 

to the FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. Chapter 35, 

et seq. 

List of Subjects in 48 CFR Part 19. 

Government procurement. 

Dated: May 12, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR part 19 as set 

forth below: 

PART 19—SMALL BUSINESS 

PROGRAMS 

1. The authority citation for 48 CFR 

part 19 continues to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

2. Amend section 19.1306 by revising 

paragraphs (a) and (a)(1) to read as 

follows: 

19.1306 HUBZone sole source awards. 

(a) A contracting officer may award 

contracts to HUBZone small business 

concerns on a sole source basis (see 

19.501(c) and 6.302–5) without 

considering small business set-asides 

(see Subpart 19.5), provided— 

(1) The contracting officer does not 

have a reasonable expectation that offers 

would be received from two or more 

HUBZone small business concerns; 

* * * * * 

3. Amend section 19.1406 by revising 

paragraphs (a)(1) and (a)(2) to read as 

follows: 

19.1406 Sole source awards to servicedisabled veteran owned small business 

concerns. 

(a) * * * 

(1) The contracting officer does not 

have a reasonable expectation that offers 

would be received from two or more 

service-disabled veteran-owned small 

business concerns; 

(2) The anticipated award price of the 

contract, including options, will not 

exceed— 

* * * * * 

[FR Doc. E9–11648 Filed 5–18–09; 8:45 am] 

BILLING CODE 6820–EP–S 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 541 and 552 

[GSAR Case 2008–G511; Docket 2009–0008; 

Sequence 1] 

RIN 3090–AI85 

General Services Administration 

Acquisition Regulation; GSAR Case 

2008–G511; Rewrite of Part 541, 

Acquisition of Utility Services 

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 

Administration Acquisition Regulation 

(GSAR) to revise the section of GSAR 

Part 541 that provides requirements for 

the acquisition of utility services. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat on or before July 20, 2009 to 

be considered in the formulation of a 

final rule. 

ADDRESSES: Submit comments 

identified by GSAR Case 2008–G511 by 

any of the following methods: 

•Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘GSAR 

Case 2008–G511’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with GSAR Case 2008– 

G511. Follow the instructions provided 

to complete the ‘‘Public Comment and 

Submission Form’’. Please include your 


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Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 23375 

name, company name (if any), and 

‘‘GSAR Case 2008–G511’’ on your 

attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

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

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite GSAR Case 2008–G511 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 Ms. Lori 

Sakalos at (202) 208–0498. 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–G511. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The GSA is amending the GSA 

Acquisition Regulation (GSAR) to 

update the text addressing GSAR Part 

541, Acquisition of Utility Services, and 

Subpart 541.XX, Solicitation Provision 

and Contract Clauses. 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 Federal 

Acquisition Regulation (FAR) and 

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. 

The 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 GSAR portion of 

Part 541. Subpart 541.XX is identified as 

‘‘shaded’’ for regulatory coverage. 

Currently, there are no GSA-unique 

clauses in Part 541. However, Subpart 

541.XX, Solicitation Provisions and 

Contract Clauses, is added to prescribe 

two GSA—unique clauses. These 

clauses are outlined in section 541.501, 

Solicitation Provisions and Contract 

Clauses, and shall be inserted by 

contracting officers in all utility 

contracts and solicitations. The first 

clause, GSAR 552.241–XX, Availability 

of Funds for the Next Fiscal Year or 

Quarter, is added as regulatory text for 

inclusion in all GSA utility solicitations 

and contracts instead of FAR 52.232–19. 

The second clause, 552.241–YY/ 

552.233–71, Disputes (Utility Contracts), 

was relocated from GSAM Part 533 and 

added to this subpart to specifically 

align with utility acquisitions. 

There were no public comments 

received in response to the Advanced 

Notice of Proposed Rulemaking 

published in the Federal Register at 71 

FR 7910 on February 15, 2006. 

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. The GSA 

will consider comments from small 

entities concerning the affected GSAR 

Parts 541 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–G511), in correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed changes 

to the GSAM do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. Chapter 35, 

et seq. 

List of Subjects in 48 CFR Parts 541 and 

552 

Government procurement. 

Dated: May 5, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

Therefore, GSA proposes to amend 48 

CFR Chapter 5 as set forth below: 

1. Add Part 541 to read as follows: 

PART 541—ACQUISITION OF UTILITY 

SERVICES 

Subpart 541.XX—Solicitation Provision 

and Contract Clauses 

Sec. 

541.501 Solicitation provision and contract 

clauses. 

2. The authority citation for 48 CFR 

part 541 reads as follows: 

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

541.501 Solicitation provision and 

contract clauses. 

In addition to the solicitation terms, 

provisions and contract clauses at FAR 

41.501(c), the contracting officer shall 

include the following clauses— 

(a) 552.241–XX, Availability of Funds 

for the Next Fiscal Year or Quarter. As 

prescribed in 541.501, insert the clause 

552.241–XX, Availability of Funds for 

the Next Fiscal Year or Quarter, instead 

of FAR 52.232–19, in all utility 

acquisitions. 

(b) 552.241–YY, Disputes (Utility 

Contracts). As prescribed in 541.501, 

insert clause 552.241–YY, Disputes 

(Utility Contracts), in solicitations and 

contracts for utility services subject to 

the jurisdiction and regulation of a 

utility rate commission. 

PART 552—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

3. The authority citation for 48 CFR 

part 552 continues to read as follows: 

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

4. Add sections 552.241–XX and 

552.241–YY to read as follows: 

552.241–XX Availability of Funds for the 

Next Fiscal Year or Quarter. 

As prescribed in 541.501, insert the 

clause 541.241–XX, Availability of 

Funds for the Next Fiscal Year or 

Quarter, instead of FAR 52.232–19, in 

all utility acquisitions. 

AVAILABILITY OF FUNDS FOR THE 

NEXT FISCAL YEAR OR QUARTER (DATE) 

Funds are not presently available for 

performance under this contract beyond 

llllllll. The Government’s 

obligation for performance of this contract 

beyond that date is contingent upon the 

availability of appropriated funds from 

which payment for contract purposes can be 

made. No legal liability on the part of the 

Government for any payment may arise for 

performance under this contract beyond 

lllll, until funds are made available to 

the Contracting Officer for performance and 

until the Contractor receives notice of 

availability, to be confirmed in writing by the 

Contracting Officer. 

(End of clause) 

552.241–YY Disputes (Utility Contracts). 

As prescribed in 541.501, insert 

clause 552.241–YY, Disputes (Utility 

Contracts), in solicitations and contracts 

for utility services subject to the 

jurisdiction and regulation of a utility 

rate commission. 


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23376 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

DISPUTES (UTILITY CONTRACTS) 

(DATE) 

The requirements of the Disputes clause at 

FAR 52.233–1 are supplemented to provide 

that matters involving the interpretation of 

tariffed retail rates, tariff rate schedules, and 

tariffed terms provided under this contract 

are subject to the jurisdiction and regulation 

of the utility rate commission having 

jurisdiction. 

(End of clause) 

[FR Doc. E9–11654 Filed 5–18–09; 8:45 am] 

BILLING CODE 6820–61–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R3–ES–2008–0030; 92210–1111– 

0000–FY09–B3] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition To List the Coaster Brook 

Trout as Endangered 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 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 coaster brook trout (Salvelinus 

fontinalis) as endangered under the 

Endangered Species Act of 1973, as 

amended (Act). The petition also asked 

that critical habitat be designated for the 

species. After review of all available 

scientific and commercial information, 

we find that the coaster brook trout 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 coaster 

brook trout and to support cooperative 

conservation of coaster brook trout 

within its historical range in the Great 

Lakes. 

DATES: The finding announced in this 

document was made on May 19, 2009. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov at Docket Number 

[FWS–R3–ES–2008–0030]. Supporting 

documentation for this finding is 

available for inspection, by 

appointment, during normal business 

hours at the U.S. Fish and Wildlife 

Service, Region 3 Fish and Wildlife 

Service Regional Office, 1 Federal Drive, 

Bishop Henry Whipple Federal 

Building, Fort Snelling, MN 55111. 

Please submit any new information, 

materials, comments, or questions 

concerning this finding to the above 

address, Attention: Coaster brook trout. 

FOR FURTHER INFORMATION CONTACT: 

Jessica Hogrefe, Region 3 Fish and 

Wildlife Service Regional Office (see 

ADDRESSES) (telephone 612–713–5346; 

facsimile 612–713–5292). Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4(b)(3)(B) of the Act (16 

U.S.C. 1531 et seq.) requires that, for 

any petition to revise the Lists of 

Endangered and Threatened Wildlife 

and Plants that contains substantial 

scientific and commercial information 

that listing may be warranted, we make 

a finding within 12 months of the date 

of our receipt of the petition on whether 

the petitioned action is: (a) Not 

warranted, (b) warranted, or (c) 

warranted, but the immediate proposal 

of a regulation implementing the 

petitioned action is precluded by other 

pending proposals to determine whether 

species are threatened or endangered, 

and expeditious progress is being made 

to add or remove qualified species from 

the List of Endangered and Threatened 

Species. Section 4(b)(3)(C) of the Act 

requires that we treat a petition for 

which the requested action is found to 

be warranted but precluded as though 

resubmitted on the date of such finding, 

that is, requiring that we make a 

subsequent finding within 12 months. 

Such 12-month findings must be 

published in the Federal Register. This 

notice constitutes our 12-month finding 

for the petition to list the U.S. 

population of coaster brook trout. 

Previous Federal Action 

The Sierra Club Mackinac Chapter, 

Huron Mountain Club, and Marvin J. 

Roberson filed a petition, dated 

February 22, 2006, with the Secretary of 

the Interior to list as endangered the 

‘‘naturally spawning anadromous (lakerun) coaster brook trout throughout its 

known historic range in the 

conterminous United States’’ and to 

designate critical habitat under the Act. 

The petition clearly identified itself as 

such and included the requisite 

identification information for the 

petitioners, as required in 50 CFR 

424.14(a). On behalf of the petitioners, 

Peter Kryn Dykema, Secretary of the 

Huron Mountain Club, submitted 

supplemental information, dated May 

23, 2006, in support of the original 

petition. This supplemental information 

provided further information on the 

species’ status and biology, particularly 

for brook trout in the Salmon Trout 

River. 

On September 13, 2007, we received 

a 60-day notice of intent to sue over the 

Service’s failure to determine, within 1 

year of receiving the petition, whether 

the coaster brook trout warrants listing. 

Under section 4 of the Act, the Service 

is to make a finding, to the maximum 

extent practicable within 90 days of 

receiving a petition, that it does or does 

not present substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

Further, the Act requires that, within 12 

months of receiving a petition found to 

present substantial information, the 

Service must determine whether the 

petitioned action is warranted. A 

complaint was filed in U.S. District 

Court in the District of Columbia on 

December 17, 2007, for failure to make 

a timely finding (Sierra Club, et al. v. 

Kempthorne, No. 1:07–cv–02261 (D.D.C. 

December 17, 2007)). The Service 

reached a negotiated settlement with the 

plaintiffs to submit the 90-day finding to 

the Federal Register by March 15, 2008. 

We published a ‘‘substantial’’ 90-day 

finding March 20, 2008. The negotiated 

settlement further required the Service 

to publish the 12-month finding in the 

Federal Register by December 15, 2008. 

The deadline for the 12-month finding 

was extended to April 15, 2009, by 

mutual consent. On April 15, 2009, we 

filed an unopposed motion to extend 

the deadline for the coaster brook trout 

12-month finding to May 12, 2009. 

Species Information 

Species Description 

Brook trout (Salvelinus fontinalis), 

also called brook char or speckled trout, 

is one of three species in the genus 

Salvelinus (chars) native to north and 

eastern North America; the others being 

lake trout (S. namaycush) and Arctic 

char (S. alpinus). The chars are a subgroup of fishes in the salmon and trout 

subfamily (Salmoninae) that is distinct 

from the ‘‘true’’ trout and salmon subgroups. 

The brook trout throughout its range 

in eastern North America exhibits 

considerable variation in growth rate, 

color, and other features, but generally 

can be distinguished from other char 

and trout species by its olive-green to 

dark brown back with a light yellowbrown vermiculate pattern, sides with 

large yellow-brown spots and blue halos 

surrounding small, sporadic red and 

orange spots. Pectoral, pelvic, anal, and 

lower caudal fin have leading edges of 

white bordered by black with the 


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