        AGENCY FOR INTERNATIONAL DEVELOPMENT
        48 CFR Parts 739 and 752
        [0412-AA87]
        United States Agency for International Development Acquisition Regulation (AIDAR): Security and Information Technology Requirements

          AGENCY:
          U.S. Agency for International Development.

          ACTION:
          Proposed rule.

          SUMMARY:
          The U.S. Agency for International Development (USAID) seeks public comment on a proposed rule that would amend the USAID Acquisition Regulation (AIDAR) to incorporate a revised definition of information technology and other requirements relating to information security and information technology approvals. The Federal Information Technology Acquisition Reform Act requires improved management of the acquisition of Information technology resources. This proposed rule revising the AIDAR, if adopted, would provide increased oversight of contractor acquisition and use of information technology resources.

          DATES:
          Comments must be received no later than May 20, 2019.

          ADDRESSES:

          Address all comments concerning this notice to Carol Ketrick, Bureau for Management, Office of Acquisition and Assistance, Policy Division (M/OAA/P), Room 867F, SA-44, Washington, DC 20523-2052. Submit comments, identified by title of the action and Regulatory Information Number (RIN) by any of the following methods:
          1. Through the Federal eRulemaking Portal at http://www.regulations.gov by following the instructions for submitting comments.
          2. By Mail addressed to: USAID, Bureau for Management, Office of Acquisition & Assistance, Policy Division, Room 867-F, SA-44, Washington, DC 20523-2052.
          Comments on the information collection request under Section E, Paperwork Reduction Act must be submitted to both USAID and OMB/OIRA as follows:
          USAID—Carol Ketrick at cketrick@usaid.gov.

          OMB/OIRA—email to oira_submission@omb.eop.gov, fax to (202) 395-6974, or mail to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503.

          FOR FURTHER INFORMATION CONTACT:
          Carol Ketrick, Telephone: 202-567-4676 or email: cketrick@usaid.gov.

        SUPPLEMENTARY INFORMATION:

        A. Instructions
        All comments must be in writing and submitted through one of the methods specified in the Addresses section above. All submissions (and attachments) must include the title of the action and RIN for this rulemaking. Please include your name, title, organization, postal address, telephone number, and email address in the text of the message.
        Please note that USAID recommends sending all comments to the Federal eRulemaking Portal because security screening precautions have slowed the delivery and dependability of surface mail to USAID/Washington.
        All comments will be made available at http://www.regulations.gov for public review without change, including any personal information provided. We recommend that you do not submit information that you consider Confidential Business Information (CBI) or any information that is otherwise protected from disclosure by statute.
        USAID will only address comments that explain why this proposed rule would be inappropriate, ineffective, or unacceptable without a change. Comments that are insubstantial or outside the scope of the rule may not be considered.
        B. Background
        On September 5, 2014, the Office of Management and Budget (OMB) and the National Security Council (NSC) convened a President's Management Council, with one of the focus areas being improvement of cybersecurity in Federal acquisitions, in particular, accountability of contractors providing IT systems and services to the Federal government.
        Accordingly, USAID is taking steps to address information security for information and information systems that support the operations and assets of the agency, including those managed by contractors. The new requirements will strengthen protections of Agency information systems/facilities.
        Following the cybersecurity review directed by OMB “Follow-Up to President's Management Council Cybersecurity Meeting, September 5, 2014”, which was completed by the agency Office of the Chief of Information Officer (CIO) in October 2014, a revised clause 752.204-72 Access to USAID facilities and USAID's Information Systems (now titled Homeland Security Presidential Directive-12 (HSPD-12) and Personal Identity Verification (PIV)), and new special contract requirements were developed and implemented on an interim basis under USAID Acquisition and Assistance Policy Directive (AAPD) 16-02 SPECIAL CONTRACT REQUIREMENTS FOR INFORMATION TECHNOLOGY (IT) on May 3, 2016. The requirements in the AAPD were updated and reissued as AAPD 16-02 (Revised) on May 1, 2018. The policy published in the AAPD 16-02 (Revised) provides a new definition of information technology, and includes various requirements applicable to information and system security, as well as requirements for Electronic and Information Technology Accessibility, software licenses, and prior agency approval of IT purchases.
        This AIDAR proposed rule, when finalized and effective, will establish the new definition, the revised AIDAR clause 752.204-72 Homeland Security Presidential Directive-12 (HSPD-12) and Personal Identity Verification (PIV), and AIDAR clauses based on some of the special contract requirements from the AAPD 16-02 (Revised). The remaining special contract requirements regarding information and system security in AAPD 16-02 (Revised) that are not included in this proposed rule will be assessed after finalization of the currently open FAR cases on Controlled Unclassified Information (CUI) and Breaches of Personally Identifiable Information (PII). In addition to the contract requirements originating from the AAPD 16-02 (Revised), a proposed clause providing requirements for development and/or maintenance of third-party USAID-financed websites is included in the rule.
        Accordingly, USAID is proposing to amend the U.S. Agency for International Development (USAID) Acquisition Regulation (AIDAR) to revise various sections that will implement policy and procedures for contracts and orders for, or include a requirement for, information technology (IT) supplies, services and/or systems. These requirements will ensure that contractors comply with the current Agency IT policies. The requirements in this proposed rule would implement the requirements under the following authorities: The E-Government Act of 2002; Federal Information Technology Acquisition Reform ACT (FITARA) (Section 831 of the National Defense Authorization Act for Fiscal Year 2015, Pub. L. 113-291) and; Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d) (“Section 508”); Privacy Act of 1974 (5 U.S.C. 552a—the Act); Federal Information Security Management Act (FISMA) of 2002 (FISMA, Pub. L. 107-347. 44 U.S.C. 3531-3536); National Institute of Standards and Technology (NIST) Special Publication 800-53 revision 4 or the current version; and Office of Management and Budget (OMB) Circular A-130.
        USAID proposes to add AIDAR subpart 739, revise AIDAR 752.204-72, and include new clauses as follows:
        • FAR subpart 739 provides the Agency definition of “information technology” as issued in AAPD 16-02 (Revised). As part of the AAPD 16-02 (Revised), a Class Deviation to FAR Part 2.101(b) definition of “information technology” was approved by the head of the contracting activity. This new definition broadens and clarifies the definition to include services such as cloud services; it is derived from the definition set forth in the Office of Management and Budget's (OMB's) guidance at OMB Memo M-15-14, Management Oversight of Federal Information Technology dated June 10, 2015. AIDAR 739.2 adds this definition, which also appears at 752.239-XX Use of Information Technology Approval and 752.239-XX Limitation on Use of Information Technology.

        • AIDAR Clause 752.204-72 Access to USAID Facilities and USAID's Information Systems is being replaced in its entirety with a new title Homeland Security Presidential Directive-12 (HSPD-12) and Personal Identity Verification (PIV) and significant changes to reflect additional restrictions and reporting to better implement Homeland Security Presidential Directive-12 (HSPD-12) (August 27, 2004) and PIV procedures.
        The revision improves requirements for contractor personnel provided access to agency facilities and information systems, as well as timely monitoring of such access when the employee's employment is terminated. The revised clause requires submission of staff reports listing employees that require access to USAID facilities or information systems, and also specifies the Agency's authority to suspend or terminate the access to any systems and/or facilities if an Information Security Incident or other electronic access violation, use, or misuse incident gives cause for such action.
        • AIDAR 752.204-XX USAID-Financed Third-party websites requires that Contractors adhere to certain requirements when developing, launching, and maintaining a third-party website funded by USAID for the purpose of meeting the project implementation goals. This applies to sites hosted on environments external to USAID boundaries and not directly controlled by USAID policies and staff. The clause requires adherence to Agency branding requirements and limits the contractor to collecting only the amount of information necessary to complete the specific business need as required by statute, regulation, or Executive Order.
        • AIDAR 752.239-XX Limitation on Information Technology prohibits the acquisition of information technology under an award as defined in the clause unless prior approval is obtained from the contracting officer.
        The clause ensures that only information technology approved by the Agency Chief Information officer (CIO) is acquired, pursuant to the Federal Information Technology Acquisition Reform ACT (FITARA)(Section 831 of the National Defense Authorization Act for Fiscal Year 2015, Pub.   L. 113-291). All agency IT investment decisions, including software and IT equipment, must be made consistent with the agency's enterprise architecture. USAID must consider the total cost of ownership including the costs associated with risk issues, including security and privacy of data, and the costs of ensuring security of the IT system itself.
        This clause is consistent with the guidance promulgated by OMB in support of the Federal Information Technology Acquisition Reform Act (FITARA) and related information technology (IT) management practices in OMB Memo M-15-14 Management Oversight of Federal Information Technology.
        • AIDAR 752.239-XX Software License addresses the need to ensure that acquired software is aligned with the agency's enterprise architecture; it will also enable the Agency to consolidate licenses when appropriate in alignment with OMB Category Management Policy 16-1.
        The clause clarifies that renewal of software licenses may only occur in accordance with the mutual agreement of the parties; or an option renewal clause allowing the Government to unilaterally exercise one or more options to extend the term of the award. Since renewal of a software license would require the obligation of funds by the Federal Government, renewal must not be automatic.
        Commercial off the shelf software solutions are offered to the public under standard agreements that may take a variety of forms, including license agreements, terms of service (TOS), terms of sale or purchase, and similar agreements. Customarily, these standard agreements contain terms and conditions that are appropriate when the purchaser is a private party but are inappropriate when the purchaser is the Federal Government.
        • AIDAR 752.239-XX Information and Communication Technology (ICT) Accessibility requires contractors to implement Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d) (“Section 508”). This clause applies to all development, procurement, maintenance, and information communication technology for use by USAID and members of the U.S. public.
        • AIDAR 752.239-XX Information Technology Approval requires that contractors acquire only the information technology specified in the contract, and specifies a process to request approval if the Contractor determines that acquisition of information technology is necessary to meet the Government's requirements under the award. The clause ensures that only information technology approved by the Agency Chief Information Officer (CIO) is acquired, pursuant to the Federal Information Technology Acquisition Reform ACT (FITARA)(Section 831 of the National Defense Authorization Act for Fiscal Year 2015, Pub. L. 113-291). All agency IT investment decisions, including software and IT equipment, must be made consistent with the agency's enterprise architecture. USAID must consider the total cost of ownership including the costs associated with risk issues, including security and privacy of data, and the costs of ensuring security of the IT system itself.
        This clause is consistent with the guidance promulgated by OMB in support of the Federal Information Technology Acquisition Reform Act (FITARA) and related information technology (IT) management practices in OMB Memo M-15-14 Management Oversight of Federal Information Technology.
        • AIDAR 752.239-XX Skills and Certification Requirements for Privacy and Security Staff requires that Contractor personnel performing the roles of Information System Security Officer and Information Security Specialists possess a Certified Information Systems Security Professional (CISSP) certification. All USAID contractors who have significant information security responsibilities as defined by OPM 5 CFR part 930 must complete specialized IT security training.
        Additionally, contractor personnel filling the role of Privacy Analysts must possess a Certified Information Privacy Professional (CIPP) credential with a CIPP/US to ensure that Privacy Analysts have the expertise required to implement U.S. government privacy laws, regulations and policies specific to government practice.
        C. Regulatory Planning and Review
        This proposed rule has been determined to be “nonsignificant” under Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, is not subject to review.
        This proposed rule is not a major rule under 5 U.S.C. 804.
        D. Regulatory Flexibility Act

        The proposed rule does not 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. Therefore, an Initial Regulatory Flexibility Analysis has not been performed.
        E. Paperwork Reduction Act

        The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The proposed rule contains an information collection requirement. Accordingly, USAID has submitted a request to the Office of Management and Budget for approval of a new information collection requirement concerning “Access to USAID Facilities and USAID's Information Systems” and the monthly reports of employees requiring access.
        Access to USAID Facilities and USAID's Information Systems
        Public reporting burden for this collection of information is estimated to average initially eight hours immediately after contract award to develop the list of employee's requiring access, then 2 hours per month to update such a list, including the time for reviewing instructions, gathering/maintaining the employee names, and forwarding the list to the agency for processing. The recordkeeping requirements are minor. While a contractor is required to identify and submit the list of its employees who require access, there is no requirement to collect this information in a particular format for submission to the agency.
        The annual reporting burden is estimated as follows:

          Total number of respondents and the amount of time estimated for an average respondent to respond: 138 contractors; eight hours for the initial report, 24 hours annually thereafter for submission of the monthly reports.

          Total public burden (in hours) associated with the collection: 1,104 hours initially, and 3,312 hours annually thereafter.

          Total public burden (in cost) associated with the collection: Initial submission, $54,537, then $163,613 annually thereafter.
        When submitting comments on these information collections, your comments should address one or more of the following four points:
        (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
        (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
        (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

        (4) Ways which USAID can minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

          List of Subjects in 48 CFR parts 739 and 752
          Government procurement.

        For the reasons discussed in the preamble, USAID proposes to amend 48 CFR Parts 739 and 752 as set forth below:
        1. Add part 739 to read as follows:

          PART 739—Acquisition of Information Technology

            Sec.
            739.002
            Definitions
            739.003
            [Reserved]

            Authority:
             Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 1979 Comp., p. 435.

            739.002
            Definitions.
            As used in this part—

              Information Technology means
            (1) Any services or equipment, or interconnected system(s) or subsystem(s) of equipment, that are used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the agency; where
            (2) Such services or equipment are “used by an agency” if used by the agency directly or if used by a contractor under a contract with the agency that requires either use of the services or equipment or requires use of the services or equipment to a significant extent in the performance of a service or the furnishing of a product.
            (3) The term “information technology” includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including provisioned services such as cloud computing and support services that support any point of the lifecycle of the equipment or service), and related resources.
            (4) The term “information technology” does not include any equipment that is acquired by a contractor incidental to a contract that does not require use of the equipment.

            739.003
            [Reserved]

          PART 752—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        2. The authority for part 752 continues to read as follows:

          Authority:
          Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 1979 Comp., p. 435.

        3. Amend section 752.204-72 by revising the section heading and the clause to read as follows:

          752.204-72
          Homeland Security Presidential Directive-12 (HSPD-12) and Personal Identity Verification (PIV).

          Homeland Security Presidential Directive-12 (HSPD-12) and Personal Identity Verification (PIV) (Date)

            (a) Individuals engaged in the performance of this award as employees, consultants, or volunteers of the contractor must comply with all applicable HSPD-12 and PIV procedures, as described below, and any subsequent USAID or Government-wide HSPD-12 and PIV procedures/policies.
            (b) A U.S. citizen or resident alien engaged in the performance of this award as an employee, consultant, or volunteer of a U.S firm may obtain access to USAID facilities or logical access to USAID's information systems only when and to the extent necessary to carry out this award and in accordance with this clause. The contractor's employees, consultants, or volunteers who are not U.S. citizens or resident aliens as well as employees, consultants, or volunteers of non-U.S. firms, irrespective of their citizenship, will not be granted logical access to U.S. Government information technology systems (such as Phoenix, GLAAS, etc.) and must be escorted to use U.S. Government facilities (such as office space).
            (c) (1) No later than five business days after award, the Contractor must provide to the Contracting Officer's Representative (COR) a complete list of employees that require access to USAID facilities or information systems.
            (2) Before a contractor (or a contractor employee, consultant, or volunteer) or subcontractor at any tier may obtain a USAID ID (new or replacement) authorizing the individual routine access to USAID facilities in the United States, or logical access to USAID's information systems, the individual must provide two forms of identity source documents in original form to the Enrollment Office personnel when undergoing processing. One identity source document must be a valid Federal or State Government-issued picture ID. Contractors may contact the USAID Security Office to obtain the list of acceptable forms of documentation. Submission of these documents, to include documentation of security background investigations, is mandatory in order for the contractor to receive a PIV or PIV-Alternative (PIV-A)/Facilities Access Card (FAC) card and be granted access to any of USAID's information systems. All such individuals must physically present these two source documents for identity proofing at their enrollment.

            (d) The Contractor must send a staffing report to the COR by the fifth day of each month. The report must contain the listing of all staff members with access who were separated or hired under this contract in the past sixty (60) calendar days. This report must be submitted even if no separations or hiring occurred during the reporting period. Failure to submit the `Contractor Staffing Change Report' each month may, at USAID's discretion, result in the suspension of all logical access to USAID information systems and/or facilities access associated with this contract. USAID will provide the contractor the format for this report.
            (e) Contractor employees are strictly prohibited from sharing logical access to USAID information systems and Sensitive Information. USAID will disable accounts and revoke logical access to USAID IT systems if Contractor employees share accounts.
            (f) USAID, at its discretion, may suspend or terminate the access to any systems and/or facilities when an Information Security Incident or electronic access violation, use, or misuse incident gives cause for such action. The suspension or termination may last until such time as USAID determines that the situation has been corrected or no longer exists.

            (g) The Contractor must notify the COR and the USAID Service Desk at least five business days prior to the Contractor employee's removal from the contract. For unplanned terminations of Contractor employees, the Contractor must immediately notify the COR and the USAID Service Desk (CIO-HELPDESK@usaid.gov or (202) 712-1234). The Contractor or its Facilities Security Officer must return USAID PIV/FAC cards and remote authentication tokens issued to Contractor employees to the COR prior to departure of the employee or upon completion or termination of the contract, whichever occurs first.
            (h) The contractor is required to insert this clause (including this paragraph (h) in any subcontracts that require the subcontractor, subcontractor employee, or consultant to have routine physical access to USAID space or logical access to USAID's information systems.

          (End of Clause)

        4. Add section 752.204-XX to read as follows:

          752.204-XX
           USAID-Financed Third-Party Websites.
          Insert the following clause in USAID-funded solicitations and contracts that require development and/or maintenance of a third-party website to achieve project implementation goals.
          USAID-Financed Third-Party Websites (Date)

            (a) Definitions: “Third-party websites”
            Websites hosted on environments external to USAID boundaries and not directly controlled by USAID policies and staff, except through the terms and conditions of a contract. Third-party websites include project websites.
            (b) The contractor must adhere to the following requirements when developing, launching, and maintaining a third-party website funded by USAID for the purpose of meeting the project implementation goals:
            (1) Prior to website development, the Contractor must provide information as required in Section C-Statement of Work of the contract (including a copy of their Contractor's privacy policy) to the Contracting Officer's Representative (COR), for USAID's Bureau for Legislative and Public Affairs (LPA) evaluation and approval. The Contractor must notify the COR of the website URL as far in advance of the site's launch as possible and must not launch the website until USAID's approval has been provided through the COR. The Contractor must provide the COR any changes to the Contractor's privacy policy for the duration of the contract.
            (2) The Contractor must collect only the amount of information necessary to complete the specific business need as required by statute, regulation, or Executive Order.

            (3) The Contractor must comply with Agency branding and marking requirements comprised of the USAID logo and brandmark with the tagline “from the American people,” located on the USAID website at www.usaid.gov/branding, and USAID Graphics Standards manual at http://www.usaid.gov.

            (4) The website must be marked on the index page of the site and every major entry point to the website with a disclaimer that states:
            “The information provided on this website is not official U.S. Government information and does not represent the views or positions of the U.S. Agency for International Development or the U.S. Government.”
            (5) The website must provide persons with disabilities access to information that is comparable to the access available to others. As such, all site content must be compliant with the requirements of the Section 508 of the Rehabilitation Act, as amended (29 U.S.C. 794d) (“Section 508”) and other terms and conditions of the contract.
            (6) The Contractor must identify and provide to the COR, in writing, the contact information for the Contractor's information security point of contact. The contractor is responsible for updating the contact information whenever there is a change in personnel assigned to this role.

            (7) The Contractor must provide adequate protection from unauthorized access, alteration, disclosure, or misuse of information processed, stored, or transmitted on the websites. To minimize security risks and ensure the integrity and availability of information, the Contractor must use sound: System/software management; engineering and development; and secure-coding practices consistent with USAID standards and information security best practices. Rigorous security safeguards, including but not limited to, virus protection; network intrusion detection and prevention programs; and vulnerability management systems must be implemented and critical security issues must be resolved as quickly as possible or within 30 calendar days. Contact the USAID Chief Information Security Officer (CISO) at ISSO@usaid.gov for specific standards and guidance.

            (8) The Contractor must conduct periodic vulnerability scans, mitigate all security risks identified during such scans, and report subsequent remediation actions to CISO at ISSO@usaid.gov and COR within 30 calendar days from the date vulnerabilities are identified. The report must include disclosure of the tools used to conduct the scans. Alternatively, the contractor may authorize USAID CISO at ISSO@usaid.gov to conduct periodic vulnerability scans via its Web-scanning program. The sole purpose of USAID scanning will be to minimize security risks. The Contractor will be responsible for taking the necessary remediation action and reporting to USAID as specified above.

            (c) For general information, agency graphics, metadata, privacy policy, and Section 508 compliance requirements, refer to http://www.usaid.gov.

          (End of Clause)

        5. Add section 752.239-XX to read as follows:

          752.239-XX
          Limitation on Acquisition of Information Technology.
          Insert the following clause in all solicitations and contracts unless the special contract requirement Information Technology Approval is included.
          Limitation on Acquisition of Information Technology (Date)

            (a) Definitions. As used in this contract:

              Information Technology means
            (1) Any services or equipment, or interconnected system(s) or subsystem(s) of equipment, that are used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the agency; where
            (2) such services or equipment are “used by an agency” if used by the agency directly or if used by a contractor under a contract with the agency that requires either use of the services or equipment or requires use of the services or equipment to a significant extent in the performance of a service or the furnishing of a product.
            (3) The term “information technology” includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including provisioned services such as cloud computing and support services that support any point of the lifecycle of the equipment or service), and related resources.
            (4) The term “information technology” does not include any equipment that is acquired by a contractor incidental to a contract that does not require use of the equipment.

            (b) The Federal Information Technology Acquisition Reform Act (FITARA) requires Agency Chief Information Officer (CIO) review and approval of contracts that include information technology or information technology services.

            (c) The Contractor must not acquire information technology as defined in this clause without the prior written approval by the contracting officer as specified in this clause.
            (d) Request for Approval Requirements:
            (1) If the Contractor determines that any information technology will be necessary to meet the Government's requirements or to facilitate activities in the Government's statement of work, the Contractor must request prior written approval from the Contracting Officer.

            (2) As part of the request, the Contractor must provide the Contracting Officer a description and an estimate of the total cost of the information technology equipment, software, or services to be procured under this contract. The Contractor must simultaneously notify the Contracting Officer's Representative (COR) and the Office of the Chief Information Office at ITAuthorization@usaid.gov.

            (e) The Contracting Officer will provide written approval to the Contractor through modification to the contract expressly specifying the information technology equipment, software, or services approved for purchase by the COR and the Agency CIO. The Contracting Officer will include the applicable clauses and any special contract requirements in the modification.
            (f) Except as specified in the contracting officer's written approval, the Government is not obligated to reimburse the Contractor for any costs incurred for information technology as defined in this clause. Such approval does not relieve the Contractor from the responsibility to maintain current compliance at all times—including through any updates or modifications to the information technology—with all terms and conditions of the contract, as well as relevant statutes and regulations.
            (g) The Contractor must insert the substance of this clause, including this paragraph (g), in all subcontracts.

          (End of Clause)

        6. Add section 752.239-XX to read as follows:

          752.239-XX
           Software License.
          Insert the following clause in solicitations and contracts for new software licenses or to renew existing licenses, and in solicitations and contracts which may include a requirement for new software licenses or renewal of existing licenses.
          Software License Addendum (Date)

            (a) This clause incorporates certain terms and conditions relating to Federal procurement actions. The terms and conditions of this Addendum take precedence over the terms and conditions contained in any license agreement or other contract documents entered into between the parties.
            (b) Governing Law: Federal procurement law and regulations, including the Contract Disputes Act, 41 U.S.C.  601 et seq., and the Federal Acquisition Regulation (FAR), govern the agreement between the parties. Litigation arising out of this contract may be filed only in those fora that have jurisdiction over Federal procurement matters.
            (c) Attorney's Fees: Attorney's fees are payable by the Federal government in any action arising under this contract only pursuant to the Equal Access in Justice Act, 5 U.S.C. 504.
            (d) No Indemnification: The Federal government will not be liable for any claim for indemnification; such payments may violate the Anti-Deficiency Act, 31 U.S.C. 1341(a).
            (e) Assignment: Payments may only be assigned in accordance with the Assignment of Claims Act, 31 U.S.C. 3727, and FAR Subpart 32.8, “Assignment of Claims.”
            (f) Patent and Copyright Infringement: Patent or copyright infringement suits brought against the United States as a party may only be defended by the U.S. Department of Justice (28 U.S.C.  516).
            (g) Renewal of Support after Expiration of this Award: Service will not automatically renew after expiration of the initial term of award.
            (h) Renewal may only occur in accord with (1) the mutual agreement of the parties; or (2) an option renewal clause allowing the Government to unilaterally exercise one or more options to extend the term of the award.

          (End of Clause)

        7. Add section 752.239-72 to read as follows:

          752.239-72
           Information and Communication Technology Accessibility.
          Insert the following clause in solicitations and contracts that include acquisition of Information and Communication Technology (ICT) supplies and/or services for use by Federal employees or U.S. members of the public.
          Information and Communication Technology Accessibility
          (Date)

            (a) Federal agencies are required by Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d), to offer access to information and communication technology for disabled individuals within its employment, and for disabled members of the public seeking information and services. This access must be comparable to that which is offered to similar individuals who do not have disabilities. Standards for complying with this law are prescribed by the Architectural and Transportation Barriers Compliance Board (“The Access Board”) in 36 CFR part 1194, which implements Section 508 of the Rehabilitation Act of 1973, as amended, and is viewable at http://www.access-board.gov/sec508/508standards.htm. The contractor must comply with any future updates of standards by the Access Board.
            (b) Except as indicated elsewhere in the contract, all ICT procured through this contract must meet the applicable accessibility standards at 36 CFR part 1194 as follows:
            (1) Section 1194.21 Software applications and operating systems
            (2) 1194.22 Web-based intranet and internet information and applications;
            (3) Section 1194.23 Telecommunications products;
            (4) Section 1194.24 Video and multimedia products;
            (5) Section 1194.25 Self-contained, closed products;
            (6) Section 1194.26 Desktop and portable computers;
            (7) Section 1194.31 Functional performance criteria; and
            (8) Section 1194.41 Information, documentation, and support.
            (c) Deliverable(s) must incorporate these standards as well.
            (d) The final work product must include documentation that the deliverable conforms with the Section 508 Standards promulgated by the US Access Board.

          (End of Clause)

        8. Add section 752.239-XX to read as follows:

          752.239-XX
          Use of Information Technology Approval.
          Insert the following clause in all USAID solicitations and contracts for Information Technology (IT) services or supplies or include a requirement for the contractor to provide IT services or supplies.
          Use of Information Technology Notification (Date)

            (a) Definitions. As used in this contract:

              Information Technology means
            (1) Any services or equipment, or interconnected system(s) or subsystem(s) of equipment, that are used in the automatic acquisition, storage, analysis, evaluation, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information by the agency; where
            (2) Such services or equipment are “used by an agency” if used by the agency directly or if used by a contractor under a contract with the agency that requires either use of the services or equipment or requires use of the services or equipment to a significant extent in the performance of a service or the furnishing of a product.
            (3) The term “information technology” includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including provisioned services such as cloud computing and support services that support any point of the lifecycle of the equipment or service), and related resources.
            (4) The term “information technology” does not include any equipment that is acquired by a contractor incidental to a contract that does not require use of the equipment. (OMB M-15-14)

            (b) The Federal Information Technology Acquisition Reform Act (FITARA) requires Agency Chief Information Officer (CIO) review and approval of contracts or interagency agreements for information technology or information technology services.
            (c) The approved information technology and/or information technology services are specified in the Schedule of this contract. The Contractor must not acquire additional information technology without the prior written approval of the Contracting Officer as specified in this clause.
            (d) Request for Approval Requirements:
            (1) If the Contractor determines that any information technology in addition to that information technology specified in the Schedule will be necessary to meet the Government's requirements or to facilitate activities in the Government's statement of work, the Contractor must request prior written approval from the Contracting Officer.

            (2) As part of the request, the Contractor must provide the Contracting Officer a description and an estimate of the total cost of the information technology equipment, software, or services to be procured under this contract. The Contractor must simultaneously notify the Contracting Officer's Representative (COR) and the Office of the Chief Information Officer at ITAuthorization@usaid.gov.

            (e) The Contracting Officer will provide written approval to the Contractor expressly specifying the information technology equipment, software, or services approved for purchase by the COR and the Agency CIO. Additional clauses or special contract requirements may be applicable and will be incorporated by the Contracting Officer through a modification to the contract.
            (f) Except as specified in the Contracting Officer's written approval, the Government is not obligated to reimburse the Contractor for costs incurred in excess of the information technology equipment, software or services specified in the Schedule. Such approval does not relieve the Contractor from the responsibility to maintain current compliance at all times—including through any updates or modifications to the information technology—with meeting all terms and conditions of the contract, as well as relevant statutes and regulations.
            (d) The Contractor must insert the substance of this clause, including this paragraph (g), in all subcontracts.

          (End of Clause)

        9. Add section 752.239-XX to read as follows:

          752.239-XX
          Skills and Certification Requirements for Privacy and Security Staff.
          Insert the following clause in solicitations and contracts for Information Technology (IT) services and in solicitations and contracts that include a component for IT services.
          Skills and Certification Requirements for Privacy and Security Staff (Date)

            (a) Applicability: This clause applies to the Contractor, its subcontractors and personnel providing support under this contract and addresses the Privacy Act of 1974 (5 U.S.C. 552a—the Act) and Federal Information Security Management Act (FISMA) of 2002 (FISMA, Pub. L. 107-347. 44 U.S.C. 3531-3536).
            (b) Contractor personnel filling the role of Information System Security Officer and Information Security Specialists must possess a Certified Information Systems Security Professional (CISSP) certification at time of contract award and maintain their certification throughout the period of performance. This will fulfill the requirements for specialized training due to the continuing education requirements for the certification. Contractor personnel must provide proof of their certification status upon request.
            (c) Contractor personnel filling the role of Privacy Analysts must possess a Certified Information Privacy Professional (CIPP) credential with a CIPP/USat the time of the contract award and must maintain the credential throughout the period of performance. This will fulfill the requirements for specialized training due to the continuing education requirements for the certification. Contractor personnel must provide proof of their certification status upon request.

          (End of Clause)

          Mark Walther,
          Chief Acquisition Officer, Acting.

      [FR Doc. 2019-04654 Filed 3-20-19; 8:45 am]
       BILLING CODE 6116-02-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [TX-144-1-7574; FRL-7383-6]
        Proposed Approval and Promulgation of Implementation Plans; Texas; Environmental Speed Limit Revision; and Voluntary Mobile Emission Reduction Program Commitment for the Houston/Galveston (HG) Ozone Nonattainment Area

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The EPA proposes to approve revisions to the Texas State Implementation Plan (SIP). This proposal covers two separate actions.We are proposing approval, through parallel processing, of: a revision to the SIP that would retain the 55 miles per hour (mph) speed limit for vehicles weighing greater than or equal to 10,000 pounds gross vehicle weight rating and would postpone implementation of speed limit reductions for vehicles weighing less than 10,000 pounds until May 01, 2005 (Dual Speed Limit Option). In the alternative, we are requesting comment on a revision to the SIP which would suspend the 55 mph speed limit for all vehicles until May 1, 2005 and in the interim implement an increase in the current environmental speed limit (ESL) of 55 mph to a 5 mph reduction from the speed limits posted before May 1, 2002. Both of these options would be applicable in the counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller; and clarification of a State enforceable commitment to remedy any shortfalls in the emission reductions attributed to the Voluntary Mobile Emission Reduction Program (VMEP) in the Houston/Galveston (HG) nonattainment area so as to achieve all necessary reductions by the attainment date.

          These new rules are consistent with attainment of the National Ambient Air Quality Standard (NAAQS) for ozone in the HG area. The EPA is proposing approval of these revisions to the Texas SIP to regulate emissions of nitrogen oxides (NOX) and volatile organic compounds (VOC) in accordance with the requirements of the Federal Clean Air Act (the Act).

          DATES:
          Written comments must be received on or before October 28, 2002.

          ADDRESSES:
          Written comments should be addressed to Mr. Thomas H. Diggs, Chief, Air Planning Section (6PD-L), at the EPA Region 6 Office listed below. Copies of documents relevant to this action are available for public inspection during normal business hours at the following locations:
          Environmental Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733. Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753. Anyone wanting to examine these documents should make an appointment with the appropriate office at least two working days in advance.

          FOR FURTHER INFORMATION CONTACT:

          Peggy Wade, Air Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7247, e-mail address: Wade.Peggy@epa.gov.

        SUPPLEMENTARY INFORMATION:

        Throughout this document “we,” “us,” and “our” refers to EPA. This document concerns control of Air Pollution of NOX and VOCs from mobile sources in the HG area for attainment demonstration purposes.
        What Action Are We Taking Today?
        On July 16, 2002, the Chairman of the Texas Commission on Environmental Quality (TCEQ) submitted to EPA for parallel processing two proposed rule revisions to the SIP. These rule revisions concern the delayed implementation of the 55 mph speed limit for vehicles weighing less than 10,000 pounds; and, clarification of a rule to commit the state to remedy any shortfalls in the emission reductions attributed to the VMEP so as to achieve all necessary reductions by the attainment date.
        On September 16, 2002, the Executive Director of the TCEQ submitted to EPA an additional option to the environmental speed limit which is under consideration by the TCEQ, in response to comments received on the Dual Speed Limit option. This proposed option would suspend the 55 mph speed limit for all vehicles until May 1, 2005, and, in the interim, would increase the current environmental speed limit of 55 mph to 5 mph below the original posted speed limit. EPA is taking comment on this option.

        These revisions are consistent with attainment of the ozone standard in the HG area. The EPA is proposing to approve these revisions to the Texas SIP to regulate emissions of NOX and VOCs in accordance with the requirements of the Federal Clean Air Act (the Act). For more information on the SIP revision, please refer to the State's June 26, 2002 proposed SIP revision and the September 16, 2002 supplemental information.

        These revisions to the HG SIP that we are proposing approval of today are being parallel processed. Parallel processing means that EPA proposes action on a portion of the state revision before the revision becomes final under state law. Under parallel processing, EPA takes final action on its proposal if the final, adopted state submission is substantially unchanged from the submission on which the proposed rulemaking was based, or if significant changes in the final submission are anticipated and adequately described in EPA's proposed rulemaking or result from corrections determined by the State to be necessary through review of issues described in EPA's proposed rulemaking. As described above, the Executive Director of TCEQ is considering a second option of speed limit implementation in the HG area. We are taking comment on this option.

        EPA is proposing action on only these two aspects (modification of the 55 mph speed limit and clarification of the State's enforceable commitment to remedy shortfalls in emission reductions attributable to VMEP) of the submitted SIP revision. A separate notice will be published in the Federal Register at a later date to address other components of the June 26, 2002 proposed SIP revision.
        Why Are We Proposing a Revision to the June 26, 2002, Texas SIP for the Postponement of the 55 mph Speed Limit for Vehicles Weighing Less Than 10,000 Pounds?

        The purpose of this revision is to delay the implementation of the speed limit reduction to 55 mph for light vehicles to May 01, 2005. The December 2000 SIP revision included a speed limit reduction for the 8-county Houston/Galveston nonattainment area. This revision reduced the speed limit to 55 mph on all roadways with posted speeds above 55 mph, with compliance to be achieved by May 01, 2002. Emission reductions attributed to reduced speed limits were initially estimated to be 12.33 tons per day (tpd) of NOX and 1.76 tpd of VOCs in 2007. (The HG SIP 2007 attainment demonstration budget for on-road mobile source NOX emissions is 156.6 tpd.) These calculations were performed by the Texas Transportation Institute (TTI) using MOBILE5a, an emissions factor model developed by EPA.

        On January 29, 2002, EPA released a new version of the MOBILE model, MOBILE6, representing current best understanding of mobile source emissions estimates. In a preliminary analysis conducted by the Texas Transportation Institute using MOBILE6, results indicate that the majority of emission reductions achieved through the speed limit reduction can be attributed to heavy-duty trucks. New data from MOBILE6 show a decrease in the 2007 ESL NOX emission reductions from 12.33 tpd (as determined with MOBILE5a) to 5.8 tpd. Additionally, 4.2 of the 5.8 tpd is attributed to heavy-duty vehicles weighing over 10,000 pounds. Passenger vehicles and light-duty trucks contribute only 1.6 tpd in NOX emission reductions when modeled at 55 mph with MOBILE6. Based on this new information, the TCEQ is proposing to retain the 55 mph speed limit for vehicles weighing greater than or equal to 10,000 pounds gross vehicle weight rating and to postpone speed limit reductions for vehicles less than 10,000 pounds until May 01, 2005.
        Because this SIP revision is a delay in implementation only, EPA concludes that the same amount of emission reductions would be achieved by the attainment date and thus, the attainment plan would be unaffected by this change. Prior to May 01, 2005, the TCEQ will conduct a more thorough review of the emissions benefits of speed limit reductions for passenger and light-duty trucks. If the TCEQ determines that such a speed limit reduction strategy is not needed to demonstrate attainment, the Commission may revise the SIP to remove the speed limit reduction altogether. However, if the TCEQ determines that more emission reductions are necessary despite this speed limit reduction strategy, the Commission will need to revise the SIP in order to provide additional control measures. Should a SIP revision be submitted incorporating the removal or modification of the speed limit reduction strategy, EPA may publish a revision to this rule.
        Texas acknowledges that the emission reductions attributed to the speed limit reduction are lower as preliminarily calculated with MOBILE6 than they were as calculated with MOBILE5a. Texas intends to do a complete new analysis of all emissions with MOBILE6 during midcourse review. At that time, Texas will determine whether the emission reductions from all controls continue to provide the emission reductions necessary for attainment as established in the attainment demonstration. Should overall emission reductions as calculated with the MOBILE6 model not prove sufficient, Texas will develop additional controls as necessary to ensure sufficient reductions are available to support the attainment demonstration.
        The affected area would include the following counties within the HG nonattainment area: Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller. This control strategy is a necessary measure to consider for contributing to a successful attainment demonstration with the NAAQS for ozone.
        Why Are We Considering the Alternative Speed Limit Proposal to the Texas SIP, Which Suspends the 55 mph Speed Limit Until May 1, 2005 and Reinstates the Speed Limit to a Level 5 mph Below the Previously Posted Speed Limits?
        As discussed previously, TCEQ has received comments on their proposed Dual Speed Limit strategy. In response to these comments, EPA is taking comment on whether a second option, if adopted by TCEQ, could be approved. Under this option, the TCEQ would suspend the 55 mph speed limit until May 1, 2005. In the interim, the 55 mph speed limit would be increased to a level 5 mph below the previously posted speed limits.

        Emission reductions can be achieved by implementing a 5 mph speed limit reduction from the previously posted speeds of 70 and 65 mph, applicable to all roadways in the 8-county area. Upon EPA approval of this proposal, speed limits on roadways having a previously posted speed limit of 70 mph will be increased from the current environmental speed limit of 55 mph to 65 mph. Speed limits on roadways with previously posted speeds of 65 mph will be increased from the current environmental limit of 55 mph to 60 mph. According to an analysis performed by the Texas Department of Transportation using EPA's MOBILE6 emissions modeling program, this speed limit will result in NOX emission reductions of 2.3 tpd when compared to the NOX emissions estimated with MOBILE6 from the previously posted higher speed limits.
        Prior to May 01, 2005, the date upon which the suspension of the 55 mph speed limit terminates, the TCEQ will conduct a more thorough review of the emissions benefits of this incremental speed limit reduction. If the TCEQ determines that such a speed limit reduction strategy is not needed to demonstrate attainment, the Commission may revise the SIP to remove the incremental speed limit reduction altogether. However, if the TCEQ determines that more emission reductions are necessary despite this speed limit reduction strategy, the Commission will need to revise the SIP in order to provide additional control measures. Should a SIP revision be submitted incorporating the removal or modification of the speed limit reduction strategy, EPA may publish a revision to this rule. EPA requests comment on whether this state proposed alternative speed limit reduction would be appropriate.

        The affected area would include the following counties within the HG nonattainment area: Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller. This control strategy is a necessary measure to consider for contributing to a successful attainment demonstration with the NAAQS for ozone.

        Why Are We Proposing To Clarify the State's Enforceable Commitment To Remedy Shortfalls in Emission Reductions Attributable to VMEP in the June 26, 2002, Texas SIP Revision?
        Voluntary Mobile Emission Reduction Programs (VMEP) are mobile source strategies which attempt to complement existing programs through voluntary, non-regulatory changes in local transportation activities. Some examples include economic and market-based incentive programs, trip reduction programs, ozone action programs and targeted public outreach efforts. Programs of this type attempt to gain additional emission reductions beyond mandatory Clean Air Act requirements and state rules by engaging the public to make changes in activities that will result in reducing mobile source emissions.
        A criterion for approval of VMEPs into SIPs is that the voluntary measure be enforceable. Under this policy, the State is obligated to monitor, assess and report on the implementation of voluntary actions and the resultant emission reductions from those actions. In addition, the State must remedy, in a timely manner, any emission reduction shortfalls should the voluntary measure not achieve the projected emission reduction.
        The purpose of this revision is to clarify the State's commitment to remedy any shortfalls in the emission reduction attributed to the VMEP so as to achieve all necessary reductions by the attainment date. The state can remedy such a shortfall by revising the voluntary program such that needed reductions will in fact be achieved, adopting substitute control measures, or demonstrating that attainment can be reached without those emission reductions. This proposed language in no way changes existing language in Section 6.3.8 of the December 2000 HG Attainment Demonstration SIP. This rule represents additional, clarifying language to be added to the SIP. Our review indicates that this additional language does not change or weaken the commitment, but merely adds clarity. EPA has reviewed the state's submittal and believes that it is not entirely clear on the timeframe in which the state would remedy any emission reductions shortfall. EPA has commented to the state that the commitment should be further clarified to explicitly express that the state will remedy any emission reduction shortfall by the attainment date. EPA proposes to approve the state's clarification of its commitment provided that the state further clarifies the commitment consistent with EPA's comment to explicitly state that any shortfall will be remedied by the attainment date.
        The affected area would include the following counties within the HG nonattainment area: Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller. This control strategy is a necessary measure to consider for contributing to a successful attainment demonstration with the NAAQS for ozone.
        Proposed Action
        We are proposing approval of two revisions: (1) delayed implementation of the 55 mph speed limit for vehicles weighing less than 10,000 pounds until May 1, 2005, or, in the alternative, EPA request's comment on suspension of the implementation of the 55 mph speed limit until May 1, 2005 and increasing the speed limit to a level 5 mph below the previously posted speed limits in the interim; and (2), clarification of a State commitment to remedy any shortfalls in the emission reductions attributed to the VMEP for the HG Ozone Nonattainment Area so as to achieve all necessary reductions by the attainment date.
        Administrative Requirements

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
        This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

        In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
        As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
        EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Intergovernmental relations, Motor vehicle pollution, Volatile organic compounds, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements.

          Authority:
          42 U.S.C. 7401 et seq.

          Dated: September 18, 2002.
          Gregg A. Cooke,
          Regional Administrator, Region 6.

      [FR Doc. 02-24492 Filed 9-25-02; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket Nos. FWS-R2-ES-2012-0064; FWS-R2-ES-2013-0027; 4500030113]
        RIN 1018-AX74; RIN 1018-AZ49
        Endangered and Threatened Wildlife and Plants; Listing as Endangered and Threatened and Designation of Critical Habitat for Texas Golden Gladecress and Neches River Rose-Mallow

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the September 11, 2012, proposed endangered status for the Texas golden gladecress and threatened status for the Neches River rose-mallow under the Endangered Species Act of 1973, as amended (Act). We also announce the reopening of comment on the September 11, 2012, proposed designation of critical habitat for these species and the availability of a draft economic analysis of the proposed designation of critical habitat for both species as well as an amended required determinations section in the proposed rule. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated draft economic analysis, and the amended required determinations section. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

          DATES:

          We will consider comments received or postmarked on or before May 16, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.

            Public informational session and public hearing: We will hold a public hearing on this proposed rule in Nacogdoches, Texas, on May 1, 2013, from 7 p.m. to 8:30 p.m. (see ADDRESSES), preceded by a public informational session beginning at 5:30 p.m.

          ADDRESSES:

            Document availability: You may obtain copies of the proposed rule and draft economic analysis on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0064 and Docket No. FWS-R2-ES-2013-0027, respectively. You may also request by mail from the Corpus Christi Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

            Comment submission: You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket No. FWS-R2-ES-2012-0064, and submit comments on the critical habitat proposal and associated draft economic analysis to Docket No. FWS-R2-ES-2013-0027. See SUPPLEMENTARY INFORMATION for an explanation of the two dockets.
          (2) By hard copy: Submit comment on the listing proposal by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2012-0064; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203. Submit comments on the critical habitat proposal and draft economic analysis by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2013-0027; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

          We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

            Public informational session and public hearing: The public informational session and hearing (see DATES) will be held in the Kennedy Auditorium at Stephen F. Austin State University, 1906 Alumni Drive S., Nacogdoches, Texas. People needing reasonable accommodation in order to attend and participate in the public hearing should contact Field Supervisor, Corpus Christi Ecological Services Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT).

          FOR FURTHER INFORMATION CONTACT:
          Field Supervisor, U.S. Fish and Wildlife Service, Corpus Christi Ecological Services Field Office, 6300 Ocean Drive, Unit 5837, Corpus Christi, Texas, 78412-5837, by telephone 361-994-9005 or by facsimile 361-994-8262. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We are reopening the comment period for our proposed listing determination and proposed critical habitat designation for the Texas golden gladecress (Leavenworthia texana) and Neches River rose-mallow (Hibiscus dasycalyx) that published in the Federal Register on September 11, 2012 (77 FR 55968). We are specifically seeking comments on the draft economic analysis, which is now available, for the critical habitat designation; see ADDRESSES.

        We are also notifying the public that we will publish two separate rules for the final listing determination and the final critical habitat determination for these two East Texas plants. The final listing rule will publish under the existing docket number, FWS-R2-ES-2012-0064, and the final critical habitat designation will publish under docket number FWS-R2-ES-2013-0027.
        We request that you provide comments specifically on our listing determination under the existing docket number FWS-R2-ES-2012-0064. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:
        (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats.
        (2) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of either species.
        (3) Any information on the biological or ecological requirements of these species and ongoing conservation measures for the species and their habitats.
        (4) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species.
        We request that you provide comments specifically on the critical habitat determination and draft economic analysis under docket number FWS-R2-ES-2013-0027. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the gladecress or the rose-mallow from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.
        (6) Specific information on:
        (a) The amount and distribution of the gladecress and the rose-mallow and their habitat;
        (b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why;
        (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
        (d) What areas not occupied at the time of listing are essential for the conservation of the species and why.
        (7) Land use designations and current or planned activities in the subject areas and the possible impacts of these designations or activities on both species and their proposed critical habitat.
        (8) Information on the projected and reasonably likely impacts of climate change on these species and proposed critical habitat.
        (9) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
        (10) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate.
        (11) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the draft economic analysis, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
        (12) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.
        (13) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
        If you submitted comments or information on the proposed rule (77 FR 55968) during the initial comment period from September 11, 2012, to November 13, 2012, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and materials concerning the proposed rule or draft economic analysis by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0064 (for the proposed listing rule) and Docket No. FWS-R2-ES-2013-0027 (for the proposed critical habitat designation and draft economic analysis), or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Corpus Christi, Texas, Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule at Docket Number FWS-R2-ES-2012-0064 and the draft economic analysis at Docket Number FWS-R2-ES-2013-0027 on the Internet at http://www.regulations.gov or by mail from the Corpus Christi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section).
        Background

        For more information on previous Federal actions concerning the gladecress and rose-mallow, refer to the proposed determination and designation of critical habitat published in the Federal Register on September 11, 2012 (77 FR 55968), which is available online at http://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0064) or from the Corpus Christi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
        Previous Federal Actions

        On September 11, 2012, we published a proposed rule to list the gladecress as endangered and designate critical habitat and to list the rose-mallow as threatened and designate critical habitat (77 FR 55968). In that same rule, for the gladecress, we proposed to designate approximately 1,353 acres (ac) (548 hectares (ha)) of critical habitat in 4 units located in Sabine and San Augustine Counties, Texas, as critical habitat. For the rose-mallow, we proposed to designate approximately 167 ac (67 ha) of critical habitat in 11 units located in Trinity, Houston, Cherokee, Nacogdoches, and Harrison Counties, Texas, as critical habitat. The September 11, 2012 listing and critical habitat proposal had a 60-day comment period, ending November 13, 2012. We will publish in the Federal Register a final listing and critical habitat designation for gladecress and rose-mallow on or before September 11, 2013.
        Critical Habitat
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Consideration of Impacts Under Section 4(b)(2) of the Act
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

        When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the gladecress and the rose-mallow, the benefits of critical habitat include public awareness of the presence of either species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for gladecress and rose-mallow due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies. We have not proposed to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES section).
        Draft Economic Analysis

        The purpose of the draft economic analysis is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the gladecress and the rose-mallow. The draft economic analysis separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the gladecress and the rose-mallow (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the draft economic analysis, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). For a further description of the methodology of the analysis, see Chapter 2, “Framework of the Analysis,” of the draft economic analysis.
        The draft economic analysis provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the gladecress and the rose-mallow over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing.
        The draft economic analysis quantifies economic impacts of gladecress and rose-mallow conservation efforts associated with the following categories of activity, if such activities are Federally assisted or carried out: (1) Routine transportation projects, utility related activities, and oil and gas development; (2) land management; and (3) water management.
        We do not anticipate recommending incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy of the species for the rose-mallow, and as such the economic analysis forecasts few incremental economic impacts as a result of administrative costs due to the designation of critical habitat for this species. A number of factors limit the extent to which the proposed critical habitat designation will result in incremental costs, including the fact that all the proposed habit is occupied by the species, the species' survival is so closely linked to the quality of their habitat, few actions being carried out in the area are subject to a Federal nexus, and a portion of the proposed habitat is currently managed for conservation. The total incremental costs of efforts resulting from section 7 consultations on the rose-mallow are approximately $29,000 in present value terms and $2,500 on an annualized basis, (assuming a seven percent discount rate over 20 years). Section 7 consultation costs for the rose-mallow are limited to administrative cost.
        The designation of critical habitat for the gladecress may result in direct incremental impacts beyond the additional administrative costs of considering adverse modification in a section 7 consultation because: (1) Only in cases where the plant can be found will proposed projects affecting the habitat also affect the plant; and (2) modifications to projects in designated critical habitat may be undertaken due to the critical habitat designation.
        The total projected incremental costs of efforts resulting from section 7 consultations on the gladecress is approximately $478,000 in present value terms and $42,700 on an annualized basis (assuming a seven percent discount rate over a 20-year period). Total incremental cost associated with administrative effort is approximately $116,000 and the total project modification costs are estimated to be $362,000 in present value terms (assuming a seven percent discount rate over a 20-year period). The analysis estimates potential future impacts based on the historical rate of consultation on co-occurring listed species in areas proposed for critical habitat as discussed in Chapter 2 of the draft economic analysis.
        As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
        Required Determinations—Amended

        In our September 11, 2012, proposed rule (77 FR 55968), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the draft economic analysis. We have now made use of the draft economic analysis data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the draft economic analysis data, we are amending our required determination concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based on our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.

        According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
        To determine if the proposed designation of critical habitat for the gladecress or the rose-mallow would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as: (1) Routine transportation projects, utility projects and associated activities, and oil and gas development, including interstate pipelines; (2) land management; and (3) water management. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the gladecress or the rose-mallow is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In the draft economic analysis, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the gladecress and the rose-mallow. For the Neches River rose-mallow, we do not anticipate recommending incremental conservation measures to avoid adverse modification of critical habitat over and above those recommended to avoid jeopardy to the species, and as such the economic analysis forecasts few incremental economic impacts as a result of the designation of critical habitat for this species. Those incremental impacts forecasted are solely related to administrative costs for adverse modification analyses in section 7 consultations. We anticipate conducting approximately 3 formal and 13 informal consultations, considering the designation, for a total of 16 consultations over the next 20 years. For the Texas golden gladecress, we anticipate incremental conservation actions related to administrative and project modification. We anticipate conducting approximately 23 potential section 7 consultations, 3 formal and 20 informal consultations, over the next 20 years.

        We assume that these consultations have an equal probability of occurring at any time during the study's timeframe. These estimates are also considered conservative because we assume that all projects occur independently; that is, we assume separate consultations for each project. Based on the consultation history, most consultations are unlikely to involve a third party. Electric cooperatives may be considered independently owned and operated establishments that are not dominant in their field, thus falling under protection of the RFA. As calculated in this analysis, however, the costs to these entities are de minimis and would not be expected to have significant impact. Consequently, no small entities are anticipated to incur costs as a result of the designation of critical habitat for Texas golden gladecress and Neches River rose-mallow. Please refer to the draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts, if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. We have attempted to address indirectly impacted entities, as well as directly impacted entities.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation for either species would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Authors
        The primary authors of this notice are the staff members of the Corpus Christi, Texas, Ecological Services Office, Southwest Region, U.S. Fish and Wildlife Service.
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: April 8, 2013.
          Rachel Jacobson,
          Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2013-08848 Filed 4-15-13; 8:45 am]
      BILLING CODE 4310-55-P