Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules 37669 

section 605 of the Regulatory Flexibility 

Act, sections 603 and 604 do not apply. 

List of Subjects 

29 CFR Part 4001 

Pensions. 

29 CFR Part 4022 

Pension insurance, Pensions. 

For the reasons given above, PBGC 

proposes to amend 29 CFR parts 4001 

and 4022 as follows. 

PART 4001—TERMINOLOGY 

1. The authority citation for part 4001 

continues to read as follows: 

Authority: 29 U.S.C. 1301, 1302(b)(3). 

2. In § 4001.2, add a new definition in 

alphabetical order to read as follows: 

§ 4001.2 Definitions 

* * * * * 

PPA 2006 bankruptcy termination 

means a plan termination to which 

section 404 of the Pension Protection 

Act of 2006 applies. Section 404 of the 

Pension Protection Act of 2006 applies 

to any plan termination in which the 

termination date occurs while 

bankruptcy proceedings are pending 

with respect to the contributing sponsor 

of the plan, if the bankruptcy 

proceedings were initiated on or after 

September 16, 2006. Bankruptcy 

proceedings are pending, for this 

purpose, if a contributing sponsor has 

filed or has had filed against it a petition 

seeking liquidation or reorganization in 

a case under title 11, United States 

Code, or under any similar Federal law 

or law of a State or political subdivision, 

and the case has not been dismissed as 

of the termination date of the plan. 

* * * * * 

PART 4022—BENEFITS PAYABLE IN 

TERMINATED SINGLE-EMPLOYER 

PLANS 

3. The authority citation for part 4022 

continues to read as follows: 

Authority: 29 U.S.C. 1302, 1322, 1322b, 

1341(c)(3)(D), and 1344. 

4. In § 4022.2, amend the first 

paragraph by removing the words ‘‘plan 

year, proposed termination date, 

substantial owner’’ and adding in their 

place ‘‘plan year, PPA 2006 bankruptcy 

termination, proposed termination date, 

statutory hybrid plan, substantial 

owner.’’ 

5. Add new § 4022.11 to subpart A to 

read as follows: 

§ 4022.11 Guarantee of benefits relating to 

uniformed service. 

This section applies to a benefit of a 

participant who becomes reemployed 

after service in the uniformed services 

that is covered by the Uniformed 

Services Employment and 

Reemployment Rights Act of 1994 

(USERRA). 

(a) A benefit described in paragraph 

(b) of this section that would satisfy the 

requirements of § 4022.3(a) and (c) 

(together with any benefit earned for the 

period preceding military service) 

except for the fact that the participant 

was not reemployed on or before the 

termination date will be deemed to 

satisfy those requirements if PBGC 

determines, based upon a demonstration 

by the participant or otherwise, that he 

or she became reemployed after the 

termination date and entitled to the 

benefit under USERRA. 

(b) A benefit described in this 

paragraph (b) is a benefit attributable to 

a period of service commencing before 

the termination date and ending on the 

termination date during which the 

participant was serving in the 

uniformed services as defined in 38 

U.S.C. 4303(13) (or was in a subsequent 

reemployment eligibility period) and to 

which the participant is entitled under 

USERRA. 

(c) Example: A plan’s vesting 

requirement is 5 years of service with 

the employer. A participant has 

completed 4 years of service when he 

leaves employment for uniformed 

service. The plan terminates while the 

participant is in military service. As of 

the termination date, the participant 

would have had 5 years of service and 

5 years of benefit accruals if he had 

remained continuously employed. Upon 

reemployment after the termination date 

but within the time limits set by 

USERRA, the participant would have 

had 6 years of service under the plan for 

vesting and benefit accrual purposes, if 

the plan had not terminated. PBGC 

would treat the participant as having a 

vested, nonforfeitable plan benefit with 

5 years of vesting service and benefit 

accruals as of the termination date. 

(d) In the case of a PPA 2006 

bankruptcy termination, ‘‘bankruptcy 

filing date’’ is substituted for 

‘‘termination date’’ each place that 

‘‘termination date’’ appears in this 

section. 

Issued in Washington, DC, this 24th day of 

July 2009. 

Vincent K. Snowbarger, 

Acting Director, Pension Benefit Guaranty 

Corporation. 

[FR Doc. E9–18074 Filed 7–28–09; 8:45 am] 

BILLING CODE 7709–01–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 215, 217, and 243 

RIN 0750–AG27 

Defense Federal Acquisition 

Regulation Supplement; Management 

of Unpriced Change Orders (DFARS 

Case 2008–D034) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: DoD is proposing to amend 

the Defense Federal Acquisition 

Regulation Supplement (DFARS) to 

address requirements for DoD 

management and oversight of unpriced 

change orders in a manner consistent 

with the management and oversight 

requirements that apply to other 

undefinitized contract actions. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before 

September 28, 2009, to be considered in 

the formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2008–D034, 

using any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: dfars@osd.mil. Include 

DFARS Case 2008–D034 in the subject 

line of the message. 

Fax: 703–602–7887. 

Mail: Defense Acquisition Regulations 

System, Attn: Ms. Cassandra Freeman, 

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

3D139, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cassandra Freeman, 703–602–8383. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DFARS Subpart 217.74 prescribes 

policies and procedures for the 

management and oversight of 

undefinitized contract actions. Unpriced 

change orders, issued in accordance 

with FAR Part 43 and DFARS Part 243, 

are presently excluded from the scope of 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

37670 Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules 

DFARS Subpart 217.74. In recognition 

of the need for full accountability of 

unpriced change orders, this proposed 

rule adds policy addressing 

management, oversight, and limitations 

on the use of unpriced change orders, 

similar to the policy that applies to 

other undefinitized contract actions. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD 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 proposed rule 

reinforces existing requirements for 

appropriate management and timely 

definitization of contract actions. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2008–D034. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the proposed rule 

does not contain any information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 215, 

217, and 243 

Government procurement. 

Michele P. Peterson, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, DoD proposes to amend 48 

CFR Parts 215, 217, and 243 as follows: 

1. The authority citation for 48 CFR 

Parts 215, 217, and 243 continues to 

read as follows: 

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

Chapter 1. 

PART 215—CONTRACTING BY 

NEGOTIATION 

215.404–71–3 [Amended] 

2. Section 215.404–71–3 is amended 

in paragraph (d)(2), in the first sentence, 

by revising the parenthetical to read 

‘‘(also see 217.7404–6(a) and 243.204– 

70–6)’’. 

PART 217—SPECIAL CONTRACTING 

METHODS 

3. Section 217.7401 is amended in 

paragraph (a)(2) by adding a second 

sentence and in paragraph (d) by adding 

a third sentence to read as follows: 

217.7401 Definitions. 

* * * * * 

(a) * * * 

(2) * * * For policy relating to 

definitization of change orders, see 

243.204–70. 

* * * * * 

(d) * * * For policy relating to 

definitization of change orders, see 

243.204–70. 

4. Section 217.7402 is revised to read 

as follows: 

217.7402 Exceptions. 

(a) The following undefinitized 

contract actions (UCAs) are not subject 

to this subpart. However, the 

contracting officer shall apply the policy 

and procedures to them to the 

maximum extent practicable (also see 

paragraph (b) of this section): 

(1) UCAs for foreign military sales. 

(2) Purchases at or below the 

simplified acquisition threshold. 

(3) Special access programs. 

(4) Congressionally mandated longlead procurement contracts. 

(b) If the contracting officer 

determines that it is impracticable to 

adhere to the policy and procedures of 

this subpart for a particular contract 

action in one of the categories in 

paragraph (a)(1), (3), or (4) of this 

section, the contracting officer shall 

provide prior notice, through agency 

channels, to the Deputy Director, 

Defense Procurement and Acquisition 

Policy (Contract Policy and 

International Contracting), 3060 Defense 

Pentagon, Washington, DC 20301–3060. 

PART 243—CONTRACT 

MODIFICATIONS 

5. Section 243.204 is revised to read 

as follows: 

243.204 Administration. 

Follow the procedures at PGI 243.204 

for administration of change orders. 

243.204–70 [Redesignated as 243.204–71] 

6. Section 243.204–70 is redesignated 

as section 243.204–71. 

7. A new section 243.204–70 is added 

to read as follows: 

243.204–70 Definitization of change 

orders. 

8. Sections 243.204–70–1 through 

243.204–70–7 are added to read as 

follows: 

243.204–70–1 Scope. 

(a) This subsection applies to 

unpriced change orders with an 

estimated value exceeding $5 million. 

(b) Unpriced change orders for foreign 

military sales and special access 

programs are not subject to this 

subsection, but the contracting officer 

shall apply the policy and procedures to 

them to the maximum extent 

practicable. If the contracting officer 

determines that it is impracticable to 

adhere to the policy and procedures of 

this subsection for an unpriced change 

order for a foreign military sale or a 

special access program, the contracting 

officer shall provide prior notice, 

through agency channels, to the Deputy 

Director, Defense Procurement and 

Acquisition Policy (Contract Policy and 

International Contracting), 3060 Defense 

Pentagon, Washington, DC 20301–3060. 

243.204–70–2 Price ceiling. 

Unpriced change orders shall include 

a not-to-exceed price. 

243.204–70–3 Definitization schedule. 

(a) Unpriced change orders shall 

contain definitization schedules that 

provide for definitization by the earlier 

of— 

(1) The date that is 180 days after 

issuance of the change order (this date 

may be extended but may not exceed 

the date that is 180 days after the 

contractor submits a qualifying 

proposal); or 

(2) The date on which the amount of 

funds obligated under the change order 

is equal to more than 50 percent of the 

not-to-exceed price. 

(b) Submission of a qualifying 

proposal in accordance with the 

definitization schedule is a material 

element of the contract. If the contractor 

does not submit a timely qualifying 

proposal, the contacting officer may 

suspend or reduce progress payments 

under FAR 32.503–6, or take other 

appropriate action. 

243.204–70–4 Limitations on obligations. 

(a) The Government shall not obligate 

more than 50 percent of the not-toexceed price before definitization. 

However, if a contractor submits a 

qualifying proposal before 50 percent of 

the not-to-exceed price has been 

obligated by the Government, the 

limitation on obligations before 

definitization may be increased to no 

more than 75 percent (see 232.102–70 

for coverage on provisional delivery 

payments). 

(b) Obligations should be consistent 

with the contractor’s requirements for 

the undefinitized period. 

mstockstill on DSKH9S0YB1PROD with PROPOSALS

Federal Register / Vol. 74, No. 144 / Wednesday, July 29, 2009 / Proposed Rules 37671 

243.204–70–5 Exceptions. 

(a) The limitations in 243.204–70–2, 

243.204–70–3, and 243.204–70–4 do not 

apply to unpriced change orders for the 

purchase of initial spares. 

(b) The head of the agency may waive 

the limitations in 243.204–70–2, 

243.204–70–3, and 243.204–70–4 for 

unpriced change orders if the head of 

the agency determines that the waiver is 

necessary to support— 

(1) A contingency operation; or 

(2) A humanitarian or peacekeeping 

operation. 

243.204–70–6 Allowable profit. 

When the final price of an unpriced 

change order is negotiated after a 

substantial portion of the required 

performance has been completed, the 

head of the contracting activity shall 

ensure the profit allowed reflects— 

(a) Any reduced cost risk to the 

contractor for costs incurred during 

contract performance before negotiation 

of the final price; 

(b) The contractor’s reduced cost risk 

for costs incurred during performance of 

the remainder of the contract; and 

(c) The extent to which costs have 

been incurred prior to definitization of 

the contract action (see 215.404–71– 

3(d)(2)). The risk assessment shall be 

documented in the contract file. 

243.204–70–7 Plans and reports. 

To provide for enhanced management 

and oversight of unpriced change 

orders, departments and agencies 

shall— 

(a) Include in the Consolidated 

Undefinitized Contract Action (UCA) 

Management Plan required by 217.7405, 

the actions planned and taken to ensure 

that unpriced change orders are 

definitized in accordance with this 

subsection; and 

(b) Include in the Consolidated UCA 

Management Report required by 

217.7405, each unpriced change order 

with an estimated value exceeding $5 

million. 

[FR Doc. E9–17955 Filed 7–28–09; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 224 

[Docket No. 0906221082–91083–01] 

RIN 0648–XQ03 

Listing Endangered and Threatened 

Species and Designating Critical 

Habitat: Notice of Finding on a Petition 

To List the Largetooth Sawfish (Pristis 

perotteti) as an Endangered or 

Threatened Species Under the 

Endangered Species Act 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce 

ACTION: Notice of finding, request for 

information, and initiation of status 

review 

SUMMARY: We, NMFS, announce a 90 

day finding on a petition to list 

largetooth sawfish (Pristis perotteti) as 

endangered or threatened under the 

Endangered Species Act (ESA). We find 

that the petition presents substantial 

scientific and commercial information 

indicating the petitioned action may be 

warranted. We will conduct a status 

review of largetooth sawfish to 

determine if the petitioned action is 

warranted. To ensure that the status 

review is comprehensive, we are 

soliciting scientific and commercial data 

regarding this species (see below). 

DATES: Information and comments on 

the subject action must be received by 

September 28, 2009. 

ADDRESSES: You may submit comments, 

identified by the code 0648–XQ03, 

addressed to: Shelley Norton, Natural 

Resource Specialist, by any of the 

following methods: 

• Electronic Submissions: Submit all 

electronic comments via the Federal 

eRulemaking Portal http:// 

www.regulations.gov 

• Facsimile (fax): 727–824–5309 

• Mail: NMFS, Southeast Regional 

Office, 263 13th Avenue South, St 

Petersburg, FL 33701 

• Hand delivery: You may hand 

deliver written comments to our office 

during normal business hours at the 

street address given above. 

Instructions: All comments received 

are a part of the public record and may 

be posted to http://www.regulations.gov 

without change. All personally 

identifiable 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, Corel WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Shelley Norton, NMFS, Southeast 

Region, (727) 824–5312; or Sean 

Ledwin, NMFS, Office of Protected 

Resources, (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On April 24th, 2009, we received a 

petition from WildEarth Guardians 

requesting that the Secretary of 

Commerce (Secretary) list largetooth 

sawfish (P. perotteti) as endangered or 

threatened throughout its range and 

designate critical habitat concurrent 

with listing. We identified largetooth 

sawfish as a candidate species under the 

ESA on June 23, 1999 (64 FR 33466). On 

November 30, 1999, we received a 

petition from the Center for Marine 

Conservation (now the Ocean 

Conservancy) requesting that we list the 

North American populations of 

largetooth and smalltooth sawfish (P. 

pectinata) as endangered. On March 10, 

2000 (65 FR 12959), we found that there 

was not substantial evidence to warrant 

initiation of a status review of North 

American populations of largetooth 

sawfish, on the basis that the petition 

did not contain substantial scientific or 

commercial information to indicate the 

present existence of such a population 

eligible for listing. WildEarth Guardians’ 

current petition also requests that the 

Secretary re-examine and reverse the 

March 10, 2000, negative 90–day 

finding to list the North American 

population of largetooth sawfish as 

endangered. We will consider the 

petitioner’s request as a request to 

consider a North American Distinct 

Population Segment (DPS), should we 

determine that a 90–day ‘‘may be 

warranted’’ finding regarding the 

species throughout its range is not 

warranted. 

ESA Statutory Provisions and Policy 

Considerations 

Section 4(b)(3)(A) of the ESA (16 

U.S.C. 1533(b)(3)(A)) requires that we 

make a finding as to whether a petition 

to list, delist, or reclassify a species 

‘‘presents substantial scientific or 

commercial information indicating the 

petitioned action may be warranted.’’ 

ESA implementing regulations define 

substantial information as the ‘‘amount 

mstockstill on DSKH9S0YB1PROD with PROPOSALS