        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 91
        [Docket No. FWS-HQ-MB-2015-0161; FXMB12330900000//167//FF09M13200]
        RIN 1018-BB23
        Revision of Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest Regulations

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; extension of comment period.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), are extending the comment period for our February 11, 2016, proposed rule to change the regulations governing the annual Migratory Bird Hunting and Conservation Stamp Contest (also known as the Federal Duck Stamp Contest). This action will allow interested persons additional time to comment on the proposal. Comments previously submitted need not be resubmitted as they will be fully considered in preparation of the final rule.

          DATES:

          The comment period for the proposed rule published in the Federal Register on February 11, 2016 (81 FR 7279), is extended. We will accept comments from all interested parties until March 21, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below), must be received by 11:59 p.m. Eastern Time on the closing date.

          ADDRESSES:

            Document availability: You may obtain a copy of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-HQ-MB-2015-0161.

            Comment submission: You may submit comments by one of the following methods:
          • Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-HQ-MB-2015-0161, which is the docket number for this rulemaking. Then click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate the document. You may submit a comment by clicking on “Comment Now!”
          • By hard copy: Submit by U.S. mail or hand delivery to: Public Comments Processing, Attn: FWS-HQ-MB-2015-0161; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, MS: BPHC; Falls Church, VA 22041-3803.
          We will post all comments onhttp://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments under SUPPLEMENTARY INFORMATION for more information).

          FOR FURTHER INFORMATION CONTACT:
          Suzanne Fellows, (703) 358-2145.

        SUPPLEMENTARY INFORMATION:

        Public Comments

        We will accept written comments during this extended comment period on our proposed revisions to the annual Migratory Bird Hunting and Conservation Stamp Contest (also known as the Federal Duck Stamp Contest), that was published in the Federal Register on February 11, 2016 (81 FR 7279). We will consider comments and information that we receive from all interested parties on or before the close of the comment period (see DATES).
        If you have already submitted comments during the public comment period that began February 11, 2016, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final rule.

        You may submit your comments by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.
        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.
        Background
        On February 11, 2016, we published a proposed rule (81 FR 7279) regarding changes to the regulations in title 50 of the Code of Federal Regulations (CFR) at 50 CFR part 91 concerning the Federal Duck Stamp Contest. Specifically, our amendments would update our contact information; update the common names and spellings of species on our list of potential contest design subjects; correct minor grammar errors; and update the regulations to require the inclusion of an appropriate secondary non-waterfowl migratory bird species on entries beginning with the 2016 contest.
        During the course of the comment period, we received a request to extend the 30-day public comment period on the proposed rule beyond the March 14, 2016, closing date. In order to provide all interested parties an opportunity to review and comment on the proposed rule, we are extending the comment period on the proposed rule for an additional 7 days, until March 21, 2016.
        Authority

        The authority for this action is the Migratory Bird Hunting and Conservation Stamp Act, as amended (16 U.S.C. 718a et seq.).

          Dated:  March 8, 2016.
          Karen Hyun,
          Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2016-05694 Filed 3-14-16; 8:45 am]
       BILLING CODE 4333-15-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [I.D. 031401D]
        Atlantic Highly Migratory Species; Advisory Panel Meeting; Public Hearing

          AGENCY:
           National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
           Advisory Panel meeting and public hearing.

          SUMMARY:
          NMFS will hold a joint meeting of the Atlantic Highly Migratory Species Advisory Panel (HMS AP) and the Atlantic Billfish Advisory Panel (Billfish AP), April 2 through 4, 2001, in Silver Spring, MD.  NMFS will also hold a public hearing to receive comments from fishery participants and other members of the public regarding proposed regulations open for public comment at that time.  Instructions on submitting written comments will be published with the respective proposed regulations.

          DATES:
           The joint HMS-Billfish AP meeting will be held from 1 p.m. to 5 p.m. on Monday, April 2; from 8 a.m. to 5 p.m. on Tuesday, April 3; and from 8 a.m. to 3:30 p.m. on Wednesday, April 4.
          The public hearing will be held from 7 p.m. until 10 p.m. on Tuesday, April 3, 2001.

          ADDRESSES:
           The AP meeting and the public hearing will be held in the NOAA Science Center, 1301 East-West Highway, Silver Spring, MD 20910.
          Materials related to the AP meeting and public hearing are available from Othel Freeman, Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910, 301-713-2347.

          FOR FURTHER INFORMATION CONTACT:
          Dr. Ronald G. Rinaldo, 301-713-2347.

        SUPPLEMENTARY INFORMATION:
         The actions to be discussed by the APs and the proposed rules that are the subject of the hearing are necessary to address requirements of the Magnuson-Stevens Fishery Conservation and Management Act and to implement recommendations of the International Commission for the Conservation of Atlantic Tunas as required by the Atlantic Tunas Convention Act, for the conservation and management of highly migratory species.
        Special Accomodations

        These hearings are physically accessible to people with disabilities.  Requests for sign language interpretation or other auxiliary aids should be directed to Dr. Rinaldo (see FOR FURTHER INFORMATION CONTACT) at least 7 days prior to the hearing.

          Authority:
          16 U.S.C. 961 et seq., and 16 U.S.C. 1801 et seq.

          Dated: March 14, 2001.
          Bruce C. Morehead,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 01-6764 Filed 3-14-01; 4:24 pm]
      BILLING CODE 3510-22-S


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 09-2263; MB Docket No. 09-190; RM-11566]
        Radio Broadcasting Services; Stonewall, Texas

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          This document sets forth a proposal to amend the FM Table of Allotments, Section 73.202(b) of the Commission's rules, 47 C.F.R. Section 73.202(b). The Commission requests comment on a petition filed by Katherine Pyeatt proposing the allotment of FM Channel 280A as a first local service at Stonewall, Texas. Channel 280A can be allotted at Stonewall in compliance with the Commission's minimum distance separation requirements with a site restriction of 13.8 km (8.6 miles) southwest of Stonewall, at 30-08-45 North Latitude and 98-45-45 West Longitude. See Supplementary Information infra.

          DATES:
          The deadline for filing comments is December 31, 2009. Reply comments must be filed on or before 15 days following the deadline for initial comments.

          ADDRESSES:
          Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554. In addition to filing comments with the FCC interested parties should serve petitioner, as follows: Katherine Pyeatt, 2215 Cedar Springs Road, Suite 1605, Dallas, Texas 75201.

          FOR FURTHER INFORMATION CONTACT:
          Deborah A. Dupont, Media Bureau, (202) 418-7072.

        SUPPLEMENTARY INFORMATION:
        This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket 09-190, adopted October 21, 2009, and released October 23, 2009. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. 20554.
        The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW, Room CY-B402, Washington, DC 20554, 800-378-3160 or via the company's website, http://www.bcpiweb.com.
        This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden ”for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
        Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
        Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.
        For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

          List of Subjects in 47 CFR Part 73
          Radio, Radio broadcasting.

          For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

            PART 73 - RADIO BROADCAST SERVICES

          1. The authority citation for Part 73 continues to read as follows:
          Authority: 47 U.S.C. 154, 303, 334, 336.
          $ 73.202 [Amended]
          2. Section 73.202(b), the Table of FM Allotments under Texas, is amended by adding Stonewall, Channel 280A.

          Federal Communications Commission.

          Federal Communications Commission.

            John A. Karousos,

          Assistant Chief,
          Audio Division,
          Media Bureau.

      [FR Doc. E9-28671 Filed 11-30-09; 8:45 am]
      BILLING CODE 6712-01-S


        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 1816 and 1852
        [NFS Case 2016-N027]
        RIN 2700-AE32
        NASA Federal Acquisition Regulation Supplement: Award Term

          AGENCY:
          National Aeronautics and Space Administration.

          ACTION:
          Proposed rule.

          SUMMARY:
          NASA is proposing to amend the NASA Federal Acquisition Regulation (FAR) Supplement (NFS) to add policy on the use of additional contract periods of performance or “award terms” as a contract incentive.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before February 7, 2017, to be considered in the formation of a final rule.

          ADDRESSES:
          Submit comments identified by NFS Case 2016-N027, using any of the following methods:
          ○ Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “NFS Case 2016-N027” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “NFS Case 2016-N027.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “NFS Case 2016-N027” on your attached document.
          ○ Email: marilyn.chambers@nasa.gov. Include NFS Case 2016-N027 in the subject line of the message.
          ○ Fax: (202) 358-3082.
          ○ Mail: National Aeronautics and Space Administration, Headquarters, Office of Procurement, Contract and Grant Policy Division, Attn: Marilyn E. Chambers, LP-011, 300 E Street SW., Washington, DC 20546-0001.

          FOR FURTHER INFORMATION CONTACT:
          Marilyn E. Chambers, NASA HQ, Office of Procurement, Contract and Grant Policy Division, Suite 5H38, 300 E Street SW., Washington, DC 20456-0001. Telephone 202-358-5154; facsimile 202-358-3082.

        SUPPLEMENTARY INFORMATION:

        I. Background
        NASA is proposing to amend the NFS to implement policy addressing the use of “award terms” or additional contract periods of performance for which a contractor may earn if the contractor's sustained performance is superior, the Government has an on-going need for the requirement, and funds are available for the additional period of performance. The purpose of the policy is to provide a non-monetary incentive for contractors whose sustained performance is excellent. An award term incentive would be used where a longer term relationship (generally more than five years) between the Government and a contractor would provide benefits to both parties. Benefits of award term incentives include a more stable business relationship both for the contractor and its employees (thus retaining a skilled, experienced workforce), motivating excellent performance (including cost savings), fostering contractor capital investment, increasing the desirability of the award (potentially increasing competition), and reduced administrative costs and disruptions in preparing for and negotiating replacement contracts.
        Award terms are an incentive and not the same as exercising an option as set forth in FAR 17.207. While there are similarities between an award term and an option, such as funds must be available and the requirement must fulfill an existing Government need, the key difference is that an option may be exercised when the contractor's performance is acceptable, while earning an award term requires sustained excellent performance.
        II. Discussion
        The FAR subpart 16.4, Incentive Contracts, addresses a variety of techniques to incentivize contractor delivery or technical performance by connecting the amount of profit or fee payable under the contract to the contractor's performance and payable during the current period of performance. Under conventional incentives, funds are reserved to cover the incentive for the instant performance period. Conversely, an award term could be earned after the base period of performance and any option(s) are exercised; an award term does not involve additional funds beyond the amount of the current performance period.
        NASA is proposing to add section 1816.405-277 to address the use of award term incentives and covers the following areas:
        • Considerations when planning to use award term incentives.
        • Differences between contract options and award term incentives.
        • Identifying plans to use award term incentives in acquisition planning.

        • Procurement procedures related to processing award term incentives.

        • Establishes a minimum contract value of twenty million dollars in order to use award term incentives.
        • Sets forth the requirement for an award term plan to be incorporated into the contract and lists the elements of such a plan.
        • The Government's unilateral right to not grant or to cancel award terms and the conditions under which this may occur.
        Additionally, the clause at 1852.216-XX, Award Term, is added to inform the contractor of the conditions for earning an award term and the fact that, even if the contractor meets the standards of eligibility for an award term, the Government may not grant the award term or cancel the award term under certain listed conditions.
        III. Executive Orders 12866 and 13563
        Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        IV. Regulatory Flexibility Act

        NASA does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because, based on current usage, NASA does not expect to award a large number of award term contracts. In those instances when used, award term contracts will include small businesses to the same extent that small businesses are included in other NASA procurements. NASA anticipates that this rule will provide all entities, both large and small, with a positive benefit. However, an initial regulatory flexibility analysis (IRFA) has been performed and is summarized as follows:
        The Federal Procurement Data System (FPDS) does not track award term contracts, but a survey of NASA's procurement organizations shows there are currently ten (10) active award term contracts. Of these, six (6) are with small businesses. A range of services are covered, such as logistics, facilities or technical management and information technology.
        The rule imposes no reporting, recordkeeping, or other information collection requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules, and there are no known significant alternatives to the rule. NASA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
        NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (NFS Case 2016-N027), in correspondence.
        V. Paperwork Reduction Act
        The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

          List of Subjects in 48 CFR Parts 1816 and 1852
          Government procurement.

          Manuel Quinones,
          NASA FAR Supplement Manager.

        Accordingly, 48 CFR parts 1816 and 1852 are proposed to be amended as follows:
        1. The authority citation for parts 1816 and 1852 continues to read as follows:

          Authority:
           51 U.S.C. 20113(a) and 48 CFR chapter 1.

          PART 1816— TYPES OF CONTRACTS

        2. Amend section 1816.001 by adding in alphabetical order the definition “Term-determining official” to read as follows:

          1816.001
           Definitions.

            Term-determining official means the designated Agency official who reviews the recommendations of the Award-Term Board in determining whether the contractor is eligible for an award term.

        3. Add section 1816.405-277 to read as follows:

          1816.405-277
           Award term.
          (a) An award term enables a contractor to become eligible for additional periods of performance or ordering periods under a service contract (as defined in FAR 37.101) by achieving and sustaining the prescribed performance levels under the contract. It incentivizes the contractor for maintaining superior performance by providing an opportunity for extensions of the contract term.
          (b) Award terms are best suited for acquisitions where a longer term relationship (generally more than five years) between the Government and a contractor would provide significant benefits to both. Motivating excellent performance, fostering contractor capital investment, and increasing the desirability of the award, thus potentially increasing competition, are benefits that may justify the use of award terms.
          (c) While the administrative burden and cost of more frequent procurements to both the Government and potential offerors should be considered when determining whether to use award terms, this decision must be weighed against market stability, the potential changes and advancements in technology, and flexibility to change direction with mission changes and associated frequent procurements.

          (d) Award terms may be used in conjunction with contract options under FAR 17.2. Award terms are similar to contract options in that they are conditioned on the Government's continuing need for the contract and the availability of funds. However, FAR 17.207(c)(7) states the contracting officer must determine that the contractor's performance has been acceptable, e.g., received satisfactory ratings. In contrast, to become eligible for an award term, the contractor must maintain a level of performance above acceptable as specified in the Award Term Plan (see 1816.405-277(i)). In contracts with both option periods and award terms, the award term period of performance or ordering period shall begin after completion of any option period of performance or ordering period.

          (e) Contracts with award terms shall include a base period of performance or ordering period and may include a designated number of option periods during which the Government will observe and evaluate the contractor's performance allowing the contractor to earn an award term. Additionally, as specified in the Award Term Plan, the contractor may also be evaluated for additional award terms during performance of an earned award term. If the contractor meets or exceeds the performance requirements, there is an on-going need for and desire to continue the contract, funds are available, and the contractor is not listed in the System for Award Management Exclusions, then the contractor is eligible for contract extension for the period of the award term.
          (f) Contracts with award terms shall comply with FAR and NFS restrictions on the overall contract length, such as the 5-year period of performance limitation found at NFS 1817.204.
          (g) Award terms may only be used in acquisitions for services exceeding $20 million dollars. Use of award terms for lower-valued acquisitions may be authorized in exceptional situations such as contract requirements having direct health or safety impacts, where the judgmental assessment of the quality of contractor performance is critical.
          (h) Consistent with the Competition in Contracting Act and general procurement principles, the potential award term periods in a procurement must be priced, evaluated, and considered in the initial contract selection process in order to be valid.
          (i) Award term plan. All contracts including award terms shall be supported by an Award Term Plan that establishes criteria for earning an award term and the methodology and schedule for evaluating contractor performance. A copy of the Award Term Plan shall be included in the contract. The Contracting Officer may unilaterally revise the Award Term Plan. Award Term Plans shall—
          (1) Identify the officials to include Term-Determining Official involved in the award term evaluation and their function;
          (2) Identify and describe each evaluation factor, any subfactors, related performance standards, adjectival ratings, and numerical ranges or weights to be used. The contracting officer should follow the guidance at 1816.405-274 in establishing award term evaluation factors and 1816.405-275 in establishing adjectival rating categories, associated descriptions, numerical scoring system, and weighted scoring system;
          (3) Specify the annual overall rating required for the contractor to be eligible for an award term that reflects a level of performance above acceptable and the number of award terms the contractor may qualify for based on the rating score;

          (4) Identify the evaluation period(s) and the evaluation schedule to be conducted at stated intervals during the contract period of performance or ordering period so that the contractor will periodically be informed of the quality of its performance and the areas in which improvement is expected (e.g., six months, nine months, twelve months, or at other specific milestones), and when the decision points are for the determination that the contractor is eligible for an award term; and
          (5) Identify the contract's base period of performance or ordering period, any option period(s), and total award-term periods(s). Award term periods shall not exceed one year.
          (j)(1) The Government has the unilateral right not to grant or to cancel award term periods and the associated Award Term Plans if—
          (i) The contractor has failed to achieve the required performance measures for the corresponding evaluation period;
          (ii) After earning an award term, the contractor fails to earn an award term in any succeeding year of contract performance, the contracting officer may cancel any award terms that the contractor has earned, but that have not begun.
          (iii) The contracting officer notifies the contractor that the Government no longer has a need for the award term period before the time an award term period is to begin;
          (iv) The contractor represented that it was a small business concern prior to award of the contract, the contract was set-aside for small businesses, and the contractor rerepresents in accordance with FAR clause 52.219-28 Post-Award Small Business Program Rerepresentation, that it is no longer a small business; or
          (v) The contracting officer notifies the contractor that funds are not available for the award term.
          (2) When an award term period is not granted or cancelled, any—
          (i) Prior award term periods for which the contractor remains otherwise eligible are unaffected.
          (ii) Subsequent award term periods are also cancelled.
          (k) Cancellation of an award term period that has not yet commenced for any of the reasons set forth in paragraph (j) shall not be considered either a termination for convenience or termination for default, and shall not entitle the Contractor to any termination settlement or any other compensation. If the award term is cancelled, a unilateral modification will cite the clause as the authority.

        4. Amend section 1816.406-70 by adding paragraph (g) to read as follows:

          1816.406-70
           NASA contract clauses.

          (g) Insert the clause at 1852.216-72, Award Term in solicitations and contracts for services exceeding $20 million when award terms are contemplated.

          PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        5. Add section 1852.216-XX to read as follows:

          1852.216-XX
           Award term.
          As prescribed in 1816.406(g), insert the following clause:
          AWARD TERM
          (MONTH YEAR)
          (a) Based on overall Contractor performance as evaluated in accordance with the Award Term Plan, the Contracting Officer may extend the contract for the number and duration of award terms as set forth in the Award Term Plan subject to the Government's continuing need for the contract and the availability of funds.
          (b) The Contracting Officer will execute any earned award term period(s) through a unilateral contract modification. All contract provisions continue to apply throughout the contract period of performance or ordering period, including any award term period(s).
          (c) The Government will evaluate offerors for award purposes by adding the total price for all options and award terms to the price for the basic requirement. This evaluation will not obligate the Government to exercise any options or award term periods.
          (d) The Award Term Plan is attached in Section J. The Award Term Plan provides the methodology and schedule for evaluating Contractor performance, determining eligibility for an award term, and, together with Agency need for the contract and availability of funding, serves as the basis for award term decisions. The Contracting Officer may unilaterally revise the Award Term Plan. Any changes to the Award Term Plan will be in writing and incorporated into the contract through a unilateral modification citing this clause prior to the commencement of any evaluation period. The Contracting Officer will consult with the Contractor prior to the issuance of a revised Award Term Plan; however, the Contractor's consent is not required.

          (e) The award term evaluation(s) will be completed in accordance with the schedule in the Award Term Plan. The Contractor will be notified of the results and its eligibility to be considered for the respective award term no later than 120 days after the evaluation period set forth in the Award Term Plan. The Contractor may request a review of an award term evaluation which has resulted in the Contractor not earning the award term. The request shall be submitted in writing to the Contracting Officer within 15 days after notification of the results of the evaluation.
          (f) Right not to grant or cancel the award term. (1) The Government has the unilateral right not to grant or to cancel award term periods and the associated Award Term Plan if—
          (i) The Contractor has failed to achieve the required performance measures for the corresponding evaluation period;
          (ii) After earning an award term, the contractor fails to earn an award term in any succeeding year of contract performance, the contracting officer may cancel any award terms that the contractor has earned, but that have not begun.
          (iii) The Contracting Officer has notified the Contractor that the Government no longer has a need for the award term period before the time an award term period is to begin;
          (iv) The Contractor represented that it was a small business concern prior to award of this contract, the contract was set-aside for small businesses, and the Contractor rerepresents in accordance with FAR clause 52.219-28, Post-Award Small Business Program Rerepresentation, that it is no longer a small business; or
          (v) The Contracting Officer has notified the Contractor that funds are not available for the award term.
          (2) When an award term period is not granted or cancelled, any—
          (i) Prior award term periods for which the contractor remains otherwise eligible are unaffected, except as provided in paragraph (g) of this section; or
          (ii) Subsequent award term periods are also cancelled.
          (g) Cancellation of an award term period that has not yet started for any of the reasons set forth in paragraph (f) shall not be considered either a termination for convenience or termination for default, and shall not entitle the Contractor to any termination settlement or any other compensation.
          (h) Cancellation of an award term period that has not yet commenced for any of the reasons set forth in paragraph (f) and (g) of this clause shall not be considered either a termination for convenience or termination for default, and shall not entitle the Contractor to any termination settlement or any other compensation. If the award term is cancelled, a unilateral modification will cite this clause as the authority.
          (i) Funds are not presently available for any award term. The Government's obligation under any award term is contingent upon the availability of appropriated funds from which payment can be made. No legal liability on the part of the Government for any award term payment may arise until funds are made available to the Contracting Officer for an award term and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer.

          (End of clause)

      [FR Doc. 2016-29443 Filed 12-8-16; 8:45 am]
       BILLING CODE 7510-13-P


        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 4, 42, and 52
        [FAR Case 2008-020; Docket 2009-0031; Sequence 1]
        RIN 9000-AL43
        Federal Acquisition Regulation; FAR Case 2008-020, Contract Closeout

          AGENCIES:
          Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to revise procedures for closing out contract files. This case revises procedures for clearing final patent reports and quick-closeout procedure, and sets forth a description of an adequate final indirect cost rate proposal and supporting data.

          DATES:
          Interested parties should submit written comments to the Regulatory Secretariat on or before October 19, 2009 to be considered in the formulation of a final rule.

          ADDRESSES:
          Submit comments identified by FAR case 2008-020 by any of the following methods:
          • Regulations.gov: http://www.regulations.gov.
          Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2008-020” into the field “Keyword”. Select the link that corresponds with FAR Case 2008-020. Follow the instructions provided to submit your comment. Please include your name, company name (if any), and “FAR Case 2008-020” on your attached document.
          • Fax: 202-501-4067.
          • Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405.

            Instructions: Please submit comments only and cite FAR case 2008-020 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Jeritta A. Parnell, Procurement Analyst, at (202) 501-4082 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2008-020.

        SUPPLEMENTARY INFORMATION:
        A. Background
        In May 2007, the Director of Defense Procurement and Acquisition Policy (DPAP) completed an assessment of public input on systemic issues related to contract closeout (72 FR 28654, dated May 22, 2007). As a result, changes were proposed to the Defense Federal Acquisition Regulation Supplement (DFARS) and the FAR to improve contract closeout.
        The Councils are proposing the following FAR revisions—
        (1) Addition of language in FAR 4.804-5 setting forth the timeframe for clearing a required final patent report after receipt and procedures allowing the contracting officer to proceed with contract closeout when a required final patent report is not received;
        (2) Addition of language in FAR 42.705-1 for the cognizant auditor to determine adequacy of the contractor's proposal for audit and language referencing the clause at FAR 52.216-7(d)(2);
        (3) Addition of language in FAR 42.708 increasing the dollar threshold and revising the percentage limitation in the existing quick-closeout criteria;

        (4) Addition of language in FAR 52.216-7 setting forth a description of what data shall be submitted in an adequate final indirect cost rate proposal, (contractors may refer to the Model Incurred Cost Proposal in Chapter 6 of the Defense Contract Audit Agency Pamphlet No. 7641.90, Information for Contractors, available at http://www.dcaa.mil), what supplemental data, required for audit, may also be submitted with the proposal, and a requirement for the contractor to update cumulative costs claimed and billed within 60 days of rate settlement;
        (5) Addition of language in FAR 52.216-8 for the contracting officer to withhold fixed fee to protect the Government's interest and to encourage the timely submission of an adequate final indirect cost rate proposal;
        (6) Addition of language in FAR 52.216-9 for the contracting officer to withhold fixed fee-construction to protect the Government's interest and to encourage the timely submission of an adequate final indirect cost rate proposal; and
        (7) Addition of language in FAR 52.216-10 for the contracting officer to withhold incentive fee to protect the Government's interest and to encourage the timely submission of an adequate final indirect cost rate proposal.
        This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        B. Regulatory Flexibility Act

        The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not impose any additional requirements on small businesses. The changes to FAR Parts 4 and 42 clarify and streamline closeout procedures. The changes to the clauses at 52.216-8, 52.216-9, and 52.216-10 allow for a reserve to be set-aside to protect the Government's interest. Contracting officers already may set aside a reserve under current FAR procedures. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Parts 4, 42, and 52 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 2008-020), in correspondence.
        C. Paperwork Reduction Act
        The Paperwork Reduction Act does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Numbers 9000-0067 and 9000-0069.

          List of Subjects in 48 CFR Parts 4, 42, and 52
          Government procurement.

          Dated: August 14, 2009.
          Al Matera,
          Director, Office of Acquisition Policy.

        Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 4, 42, and 52 as set forth below:
        1. The authority citation for 48 CFR parts 4, 42, and 52 continues to read as follows:

          Authority:
           40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

          PART 4—ADMINISTRATIVE MATTERS
          2. Amend section 4.804-5 by revising paragraph (a)(2) to read as follows:

            4.804-5
            Procedures for closing out contract files.
            (a) * * *
            (2) Final patent report is cleared. If a final patent report is required, the contracting officer may proceed with contract closeout in accordance with the following procedures, or as otherwise prescribed by agency procedures:
            (i) Final patent reports should be cleared within 60 days of receipt.
            (ii) If the final patent report is not received, the contracting officer shall notify the contractor of the contractor's obligations and the Government's rights under the applicable patent rights clause. If the contractor fails to respond to this notification, the contracting officer may proceed with contract closeout upon consultation with the agency legal counsel responsible for patent matters regarding the contractor's failure to respond.

          PART 42—CONTRACT ADMINISTRATION AND AUDIT SERVICES
          3. Amend section 42.705-1 by revising paragraph (b)(1) to read as follows:

            42.705-1
            Contracting officer determination procedure.

            (b) Procedures. (1) In accordance with the Allowable Cost and Payment clause at 52.216-7, the contractor shall submit to the contracting officer (or cognizant Federal agency official) and to the cognizant auditor an adequate final indirect cost rate proposal.
            (i) The required content of the proposal and supporting data will vary depending on such factors as business type, size, and accounting system capabilities. The contractor, contracting officer, and auditor must work together to make the proposal, audit, and negotiation process as efficient as possible. Accordingly, each contractor shall submit an adequate proposal to the contracting officer (or cognizant Federal agency official) and auditor within the 6-month period following the expiration of each of its fiscal years. The contracting officer may grant reasonable extensions, for exceptional circumstances only, if requested in writing by the contractor.
            (ii) The cognizant auditor will make a written determination on the adequacy of the contractor's proposal for audit.
            (iii) The proposal must be supported with adequate supporting data, which may be required subsequent to proposal submission.
            (iv) See the clause at FAR 52.216-7(d)(2) for the description of an adequate final indirect cost rate proposal and supporting data).

            4. Amend section 42.708 by revising the introductory text of paragraph (a), (a)(1), and (a)(2) to read as follows:

            42.708
            Quick-closeout procedure.
            (a) The contracting officer responsible for contract closeout shall negotiate the settlement of indirect and direct costs for a specific contract, task order, or delivery order to be closed, in advance of the determination of final direct costs and indirect rates, if—
            (1) The contract, task order, or delivery order is physically complete;
            (2) The amount of unsettled costs to be allocated to the contract, task order, or delivery order is relatively insignificant. Cost amounts will be considered relatively insignificant when—
            (i) The total unsettled indirect and direct costs to be allocated to any one contract do not exceed $4,000,000 and do not exceed 20 percent of the total contract, task order, or delivery order amount; and
            (ii) The contracting officer performs a risk assessment and determines that the use of the quick-closeout procedure is appropriate. The risk assessment shall include consideration of the contractor's accounting, estimating, and purchasing systems; direct and indirect costs; other concerns of the cognizant contract auditors; and any other pertinent information.

          PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          5. Amend section 52.216-7 by revising the date of the clause; adding a sentence to the end of paragraph (d)(2)(i); adding paragraphs (d)(2)(iii) through (d)(2)(v); and adding two sentences to the end of paragraph (d)(5) to read as follows:

            52.216-7
            Allowable Cost and Payment.

              ALLOWABLE COST AND PAYMENT (DATE)

              (d) * * *
              (2)(i) * * * See 42.705-1(b)(1).

              (iii) An adequate indirect cost rate proposal shall include the following data unless otherwise specified by the cognizant Federal agency official (CFAO):
              (A) Summary of claimed indirect expense rates.
              (B) General and Administrative (G&A) expenses (final indirect cost pool).
              (C) Overhead expenses (final indirect cost pool).
              (D) Occupancy expenses (intermediate indirect cost pool).
              (E) Claimed allocation bases.
              (F) Facilities capital cost of money factors computation.
              (G) Reconciliation of books of account and claimed direct costs.
              (H) Schedule of direct costs by contract/subcontract and indirect expense applied at claimed rates, as well as Schedule H-1, Government participation percentages.
              (I) Schedule of cumulative direct and indirect costs claimed and billed.
              (J) Subcontract information.
              (K) Summary of hours and amounts on T&M/labor hour contracts.
              (L) Reconciliation of total payroll to total labor distribution.
              (M) Listing of decisions/agreements/approvals and description of accounting/organizational changes.
              (N) Certificate of final indirect costs.
              (O) Contract closing information for contracts completed in this fiscal year.
              (iv) The following supplemental information, which will be required during the audit process, may also be submitted with the contractor's final indirect cost rate proposal:
              (A) Comparative analysis of indirect expense pools detailed by account with prior fiscal year and budgetary data.
              (B) General Organization and Executive compensation information for top five executives.
              (C) List of ACOs and PCOs for each flexibly priced contract.
              (D) Identification of and information on prime contracts under which the contractor performs flexibly priced effort as a subcontractor.
              (E) List of work sites and the number of employees assigned to each site (identify the number of direct and indirect employees).
              (F) Description of accounting system.
              (G) Procedures for identifying and handling unallowable costs.

              (H) Certified financial statements or other financial data (e.g., trial balance, compilation, review, etc.).
              (I) Management letter from outside CPAs concerning any internal control weaknesses.
              (J) Actions that have been and/or will be implemented to correct the weaknesses described in paragraph (d)(2)(iv)(I) of this section.
              (K) List of internal audit reports issued in this fiscal year.
              (L) Annual internal audit plan of scheduled audits to be performed in this fiscal year.
              (M) Federal and state income tax returns.
              (N) Securities and Exchange Commission 10-K annual report.
              (O) Minutes from board of directors meetings.
              (P) Listing of delay and disruptions and termination claims submitted which contain costs relating to the subject fiscal year.
              (Q) Contract briefings. Contract briefings generally include a synopsis of all pertinent contract provisions, such as: contract type, contract amount, product or service(s) to be provided, applicable Cost Principles, contract performance period, rate ceilings, advance approval requirements, pre-contract cost allowability limitations, and billing limitations. A typical format for the briefings is shown at the end of this model. A contractor need not use the example form if the information is already generated and available within its automated accounting or billing systems.
              (v) The Contractor shall update the schedule of cumulative direct and indirect costs claimed and billed, as required in paragraph (d) above, within 60 days after settlement of final indirect cost rates.

              (5) * * * The completion invoice or voucher shall include settled subcontract amounts and rates. The prime contractor is responsible for settling subcontractor amounts and rates included in the completion invoice or voucher and providing status of subcontractor audits to the contracting officer upon request.

            6. Amend section 52.216-8 by revising the introductory paragraph, the date of the clause, and paragraph (b) to read as follows:

            52.216-8
            Fixed Fee.
            As prescribed in 16.307(b), insert the following clause:
            FIXED FEE (DATE)

              (b) Payment of the fixed fee shall be made as specified in the Schedule; provided that the Contracting Officer withholds a reserve not to exceed 15 percent of the total fixed fee or $100,000, whichever is less, to protect the Government's interest. The Contracting Officer shall release 75 percent of all fee withholds under this contract after receipt of an adequate certified final indirect cost rate proposal covering the year of physical completion of this contract, provided the Contractor has satisfied all other contract terms and conditions, including the submission of the final patent and royalty reports, and is not delinquent in submitting final vouchers on prior years' settlements. The Contracting Officer may release up to 90 percent of the fee withholds under this contract based on the Contractor's past performance related to the submission and settlement of final indirect cost rate proposals.
              (End of clause)

            7. Amend section 52.216-9 by revising the introductory paragraph, the date of the clause, and paragraph (c) to read as follows:

            52.216-9
            Fixed Fee—Construction.
            As prescribed in 16.307(c), insert the following clause:
            FIXED FEE—CONSTRUCTION (DATE)

              (c) The Contracting Officer shall withhold a reserve not to exceed 15 percent of the total fixed fee or $100,000, whichever is less, to protect the Government's interest. The Contracting Officer shall release 75 percent of all fee withholds under this contract after receipt of an adequate certified final indirect cost rate proposal covering the year of physical completion of this contract, provided the Contractor has satisfied all other contract terms and conditions, including the submission of the final patent and royalty reports, and is not delinquent in submitting final vouchers on prior years' settlements. The Contracting Officer may release up to 90 percent of the fee withholds under this contract based on the Contractor's past performance related to the submission and settlement of final indirect cost rate proposals.

            (End of clause)
            8. Amend section 52.216-10 by revising the introductory paragraph, the date of the clause, and paragraph (c) to read as follows:

            52.216-10
            Incentive Fee.
            As prescribed in 16.307(d), insert the following clause:
            INCENTIVE FEE (DATE)

              (c) Withholding of payment. (1) Normally, the Government shall pay the fee to the Contractor as specified in the Schedule. However, when the Contracting Officer considers that performance or cost indicates that the Contractor will not achieve target, the Government shall pay on the basis of an appropriate lesser fee. When the Contractor demonstrates that performance or cost clearly indicates that the Contractor will earn a fee significantly above the target fee, the Government may, at the sole discretion of the Contracting Officer, pay on the basis of an appropriate higher fee.
              (2) Payment of the incentive fee shall be made as specified in the Schedule; provided that the Contracting Officer withholds a reserve not to exceed 15 percent of the total incentive fee or $100,000, whichever is less, to protect the Government's interest. The Contracting Officer shall release 75 percent of all fee withholds under this contract after receipt of an adequate certified final indirect cost rate proposal covering the year of physical completion of this contract, provided the Contractor has satisfied all other contract terms and conditions, including the submission of the final patent and royalty reports, and is not delinquent in submitting final vouchers on prior years' settlements. The Contracting Officer may release up to 90 percent of the fee withholds under this contract based on the Contractor's past performance related to the submission and settlement of final indirect cost rate proposals.

      [FR Doc. E9-19937 Filed 8-19-09; 8:45 am]
      BILLING CODE 6820-EP-S


        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        [EO-13563-FAR-Docket Number 2011-0085; Sequence 1]
        48 CFR Chapter 1
        FAR Council's Plan for Retrospective Review Under Executive Order 13563—Preliminary Plan

          AGENCIES:
          Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
          Request for Information.

          SUMMARY:

          The Federal Acquisition Regulatory (FAR) Council has developed a preliminary plan for the retrospective analysis of provisions in the FAR, in accordance with Executive Order (E.O.) 13563, “Improving Regulation and Regulatory Review.” The E.O. sets forth principles and requirements designed to strengthen regulations and regulatory review by promoting public participation, improving integration and innovation, increasing flexibility, and increasing retrospective analysis of existing rules. The E.O. requires every agency to develop “a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether such regulations should be modified, streamlined, expanded or repealed to make the agency's regulatory program more effective and or less burdensome in achieving its regulatory objectives.” To comply with E.O. 13563, the FAR Council invites interested members of the public to submit comments on its preliminary plan available at http://www.whitehouse.gov/21stcenturygov/actions/21st-century-regulatory-system.

          DATES:

            Comment Date: Interested parties should submit written comments to the Regulatory Secretariat on or before July 5, 2011 to be considered in the formulation of a final plan.

          ADDRESSES:
          Submit comments identified by Regulatory Burden; Federal Acquisition Regulatory Council Retrospective Review Under Executive Order 13563 Preliminary Plan by any of the following methods:
          • Regulations.gov: http://www.regulations.gov.Submit comments via the Federal eRulemaking portal by inputting the document title under the heading “Enter Keyword or ID” and selecting “search.” Select the link “Submit a Comment” that corresponds with “FAR Council's Plan for Retrospective Review under Executive Order 13563—Preliminary Plan.” Follow the instructions provided to complete the “Submit a Comment” screen. Please include your name, company name (if any), and “FAR Council's Plan for Retrospective Review under Executive Order 13563—Preliminary Plan” on your attached document.
          • Fax: 202-501-4067.
          • Mail: General Services Administration, Regulatory Secretariat (MVCB), 1275 First Street, NE., 7th floor, ATTN: Hada Flowers, Washington, DC 20417.

            Instructions: Please submit comments only and cite the “FAR Council's Plan for Retrospective Review under Executive Order 13563—Preliminary Plan” in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

          FOR FURTHER INFORMATION CONTACT:

          The FAR Secretariat at (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Julia Wise, Procurement Policy Analyst at (202) 395-7561 or jwise@omb.eop.gov. Please cite the “FAR Council's Plan for Retrospective Review under Executive Order 13563—Preliminary Plan.”

        SUPPLEMENTARY INFORMATION:

        On January 18, 2011, the President signed E.O. 13563, “Improving Regulation and Regulatory Review,” published in the Federal Register at 76 FR 3821 on January 21, 2011, which states that agencies must consider costs and benefits of their regulations and choose the least burdensome path. Agencies are required to coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public.
        Section 6 of E.O. 13563 emphasizes the importance of retrospective analysis of rules and requires agencies to develop a plan, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, expanded, streamlined, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
        Request for Comments
        The FAR Council invites public comments on its plans for retrospective analysis. The Council's plan has tentatively identified eight priority initiatives for new or continued retrospective analysis and follow-up action over the next two years. These initiatives include—
        1. Re-examining FAR Council process for applying new regulatory requirements to commercial item acquisitions & small (simplified) purchases;
        2. Exploring opportunities to accelerate payments to small businesses;
        3. Reviewing rules governing communications with vendors before awarding contracts;
        4. Reducing number of competitions that result in only one offer;
        5. Revisiting the process for reviewing past performance information;
        6. Working with SBA to modernize rules for using contract set-asides and small business subcontracting plans;
        7. Restructuring rules addressing conflicts of interest; and
        8. Clarifying rules addressing the use of competition for Blanket purchase agreements.
        The FAR Council welcomes comments on its preliminary plan and the initiatives discussed therein. The FAR Council further invites comments about any additional regulations, other than those listed in the preliminary plan, that should be modified, expanded, streamlined, or repealed in order to make the FAR more effective or less burdensome or both.
        The FAR Council advises that this notice and request for comments is issued for information and policy development purposes. Although the FAR Council encourages responses to this notice, such comments do not bind the FAR Council to taking any further actions related to the submission.

          Dated: May 31, 2011.
          Laura Auletta,
          Acting Director, Office of Governmentwide Acquisition Policy, General Services Administration.

      [FR Doc. 2011-13835 Filed 6-2-11; 8:45 am]
      BILLING CODE 6820-EP-P


        DEPARTMENT OF AGRICULTURE
        Forest Service
        36 CFR Part 261
        RIN 0596-AC30
        Clarifying Prohibitions for Failure To Maintain Control of Fires That Damage National Forest System Lands

          AGENCY:
          Forest Service, USDA.

          ACTION:
          Proposed rule; request for comment.

          SUMMARY:
          The Forest Service is proposing to revise 36 CFR part 261, Prohibitions, to establish a new prohibition for starting and negligently failing to maintain control of a prescribed fire. Proof of criminal negligence is required of this offense. The Forest Service also is proposing to clarify that the prohibition for causing and failing to maintain control of all other fires is a strict liability offense, not requiring proof of criminal intent. In implementing the National Fire Plan, the Forest Service has encouraged adjacent landowners to develop integrated fire management plans for the use of prescribed fire for the restoration and protection of private lands adjacent to National Forest System lands. Without the proposed changes, adjacent landowners might be discouraged from using prescribed fire.

          DATES:
          Comments must be received in writing by June 1, 2007.

          ADDRESSES:

          Written comments concerning this notice should be addressed to USDA Forest Service, State and Private Forestry, Stop 1109, 1400 Independence Avenue, SW., Washington, DC 20250-1109. Comments may also be sent via e-mail to spf@fs.fed.us or via facsimile to 202-205-1174. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at USDA Forest Service, State and Private Forestry, 1400 Independence Avenue, SW., Washington, DC 20250-1109. Visitors are encouraged to call ahead to 202-205-1331 to facilitate entry into the building.

          FOR FURTHER INFORMATION CONTACT:
          Denny Truesdale, State and Private Forestry, 202-205-1588. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.

        SUPPLEMENTARY INFORMATION:
        The following outline contains the contents of the SUPPLEMENTARY INFORMATION section of this proposed rule:

          Background
          Regulatory Certifications
          Regulatory Impact
          Environmental Impact
          Federalism
          Consultation With Tribal governments
          No takings Implications
          Controlling Paperwork Burdens on the Public
          Energy Effects
          Civil Justice Reform
          Unfunded Mandates
          List of Subjects in Part 261

        Background

        A new paragraph (c) would be added to section 261.1, Scope, to clarify that unless criminal intent (“mens rea”) is expressly required in the provision setting forth the offense, strict liability would apply. Whether criminal intent is a required element of an offense is a question of statutory construction. Where a statute or regulation does not expressly require criminal intent, “silence on this point by itself does not necessarily suggest that Congress intended to dispense with the conventional mens rea element * * *” Staples v. United States, 511 U.S. 600, 605 (1994). As a general rule, absent a clear indication of legislative intent, courts require proof of intent for criminal offenses. See Id. at 605, for a discussion of cases that support this well-established principle.

        However, the general presumption that some guilty intent or purpose is required does not apply to “public welfare offenses.” These are offenses that typically impose penalties to serve as an effective means of regulation. Id. At 606 (“[i]n construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense”). Public welfare offenses are those that “are not of the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes duty.” Morissette v. United States, 342 U.S. 246, 255 (1952). Public welfare offenses “render[s] criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health and safety.” Liparota v. United States, 471 U.S. 419, 426 (1985). A person should know that the use of Federal lands is subject to stringent regulation, and that action or inaction in violation of such regulation can cause irreparable harm to the public or the land and its resources.
        The proposed clarification to section 261.1 would make express the agency's long-standing interpretation of its criminal prohibitions as public welfare offenses and confirm that, as such, they generally are strict liability offenses. Proof of criminal intent would be required only where expressly provided by the specific prohibition.

        To this end, section 261.5(e) would be revised to remove the term “allowing.” Section 261.5(e) currently prohibits “allowing a fire to escape from control.” The term “allowing” has been interpreted differently by courts in some cases to require proof of criminal intent. United States v. Semenza, 835 F.2d 223 (9th Cir. 1987); United States v. Osgudthorpe, 13 F. Supp.2d 1215 (D. Utah, 1998). In other cases, courts have found that the term does not require proof of criminal intent. United States v. Larson, 746 F.2d 455 (8th Cir. 1984), citing United States v. Wilson, 438 F.2d 525 (9th Cir. 1971). The revision would clarify that the prohibition in section 261.5(e) is a strict liability offense.
        In addition to removing the term “allowing,” section 261.5(e) also would be revised to limit its application to fires that are not prescribed fires. As clarified, the prohibition would be a strict liability offense for causing and failing to maintain control of a fire that is not a prescribed fire that damages National Forest System (NFS) lands.
        Section 261.5 also would be revised to add a new prohibition to address prescribed fires. Paragraph (g) would be added to prohibit the negligent failure to maintain control of a prescribed fire that damages NFS lands. This prohibition would not be a strict liability offense. It would require proof that the offender acted with criminal negligence. Section 261.2 would be revised to add a definition of “prescribed fire.” The term would be defined to mean a planned and intentionally lit fire allowed to burn within the applicable requirements of Federal or State laws, regulations, or permits. Many States do not have laws establishing requirements for prescribed fires. Under the definition, if a prescribed fire is allowed under applicable law (even if the law does not limit how the burn is to be conducted) and the fire was intentionally lit and planned to some extent, section 261.5(g) would apply and the Federal government would need to prove that the defendant acted with criminal negligence.
        The distinction between failure to maintain control of a prescribed fire (requiring proof of criminal negligence) and another fire (requiring no proof of criminal intent) is necessary to support efforts to reduce hazardous fuels on properties adjacent to National Forest System lands. These efforts are intended to restore ecosystems and, by doing so, protect communities in the wildland urban interface. In implementing the National Fire Plan, the Forest Service and the Department of the Interior land managing agencies have increased the amount of prescribed burning on lands under their jurisdiction. The agencies also have encouraged adjacent landowners to develop integrated fire management plans, including the use of prescribed fire, for the restoration and protection of private lands. If the prohibition for lighting and failing to maintain a prescribed fire were a strict liability offense, adjacent landowners might be discouraged from using prescribed fire as a tool on their lands out of concern that, if the fire were to escape control, they could be cited for a criminal violation without regard to whether they acted with criminal intent. New paragraph (g) would alleviate this impediment.
        Regulatory Certifications
        Regulatory Impact
        This proposed rule has been reviewed under USDA procedures and Executive Order (E.O.) 12866 on Regulatory Planning and Review. The Office of Management and Budget (OMB) has determined that this is a non-significant rule as defined by E.O 12866. This proposed rule will not have an annual effect of $100 million or more on the economy, nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This proposed rule would not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this proposed rule will not alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients of such programs. Therefore, it has been determined that this proposed rule is not an economically significant regulatory action.

        This proposed rule also has been considered in light of the Regulatory Flexibility Act, as amended, (5 U.S.C. 601 et seq.). In promulgating this proposed rule, publication of an advance notice of proposed rulemaking was not required by law. Further, it has been determined that this proposed rule will not have a significant economic impact on a substantial number of small business entities as defined by that act. Therefore, it has been determined that preparation of a regulatory flexibility analysis is not required for this proposed rule.
        Environmental Impact
        Section 31.11a of Forest Service Handbook 1909.15 (69 FR 40591; July 6, 2004) excludes from documentation in an environmental assessment or environmental impact statement “civil and criminal law enforcement and investigative activities.” This proposed rule clearly falls within this category of actions and the agency has determined that no extraordinary circumstances exist which would require preparation of an environmental assessment or an environmental impact statement. Moreover, this proposed rule itself has no impact on the human environment. Therefore, it has been determined that preparation of an environmental assessment or an environmental impact statement is not required in promulgating this proposed rule.
        Federalism
        The agency has considered this proposed rule under the requirements of Executive Order 12612 and has made a preliminary assessment that the proposed rule will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment on federalism implications is necessary at this time.
        Consultation With Tribal Governments

        This proposed rule has been reviewed under E.O. 13175 of November 6, 2000, “Consultation, and Coordination with Indian Tribal Governments.” This proposed rule does not have substantial direct effects 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. Nor does this proposed rule impose substantial direct compliance costs on Indian tribal governments or preempt tribal law. Therefore, it has been determined that this proposed rule does not have tribal implications requiring advance consultation with Indian Tribes.
        No Takings Implications
        This proposed rule has been reviewed for its impact on private property rights under Executive Order 12630. It has been determined that this proposed rule does not pose a risk of taking private property; in fact, the proposed rule honors access to private property pursuant to statute and to outstanding or reserved rights.
        Controlling Paperwork Burdens on the Public

        This proposed rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR Part 1320 and, therefore, imposes no paperwork burden on the public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) and implementing regulations at 5 CFR Part 1320 do not apply.
        Energy Effects
        This proposed rule has been reviewed under E.O. 13211 of May 18, 2001, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” This proposed rule will not have a significant adverse effect on the supply, distribution, or use of energy. Nor has the Office of Management and Budget designated this rule as a significant energy action. Therefore, it has been determined that this proposed rule does not constitute a significant energy action requiring the preparation of a Statement of Energy Effects.
        Civil Justice Reform
        This proposed rule revision has been reviewed under Executive Order 12988, Civil Justice Reform. The proposed revision: (1) Preempts all State and local laws and regulations that are found to be in conflict with or that would impede its full implementation; (2) does not retroactively affect existing permits, contracts, or other instruments authorizing the occupancy and use of National Forest System lands, and (3) does not require administrative proceedings before parties may file suit in court challenging these provisions.
        Unfunded Mandates
        Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Department has assessed the effects of this proposed rule on State, local, and tribal governments, and on the private sector. This proposed rule does not compel the expenditure of $100 million or more by any State, local, or tribal government, or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

          List of Subjects in 36 CFR Part 261
          Law enforcement, National forests.

        Therefore, for the reasons set forth in the preamble, the Forest Service proposes to amend Part 261of Title 36 of the Code of Federal Regulations as follows:

          PART 261—PROHIBITIONS
          1. The authority citation for part 261 continues to read:

            Authority:
            7 U.S.C. 1011(f); 16 U.S.C. 4601-6(d) 472, 551, 620(f), 1133(c), (d)(1), 1246(i).

            Subpart A—General Prohibitions

          2. In § 261.1, add paragraphs (c) and (d) to read as follows:

            § 261.1
            Scope.

            (c) Unless an offense set out in this part specifies that intent is required, intent is not an element of any offense under this part.
            (d) None of these prohibitions apply to any person engaged in fire suppression actions.
            3. In § 261.2, add a definition for “Prescribed fire” to read as follows

            § 261.2
            Definitions.

              Prescribed fire means a planned and intentionally lit fire allowed to burn within the requirements of Federal or State laws, regulations, or permits.

            4. Amend § 261.5 by revising paragraph (e) and by adding paragraph (g) to read as follows:

            § 261.5
            Fire.

            (e) Causing and failing to maintain control of a fire that is not a prescribed fire that damages National Forest System.

            (g) Negligently failing to maintain control of a prescribed fire on Non-National Forest system lands that damages the National Forest System.

            Dated: March 8, 2007.
            Abigail R. Kimball,
            Chief, Forest Service.

       [FR Doc. E7-5872 Filed 3-30-07; 8:45 am]
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