        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 402
        [FWS-R9-ES-2008-0093]
        RIN 1018-AT50
        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 402
        [0808011023-81048-01]
        RIN 0618-AX15
        Interagency Cooperation Under the Endangered Species Act

          AGENCIES:
          U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:
          The United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, “Services” or “we”) propose to amend regulations governing interagency cooperation under the Endangered Species Act of 1973, as amended (Act). The Services are proposing these changes to clarify several definitions, to clarify when the section 7 regulations are applicable and the correct standards for effects analysis, and to establish time frames for the informal consultation process.

          DATES:
          We must receive your comments by September 15, 2008 to ensure their full consideration in the final decision on this proposal.

          ADDRESSES:
          Submit your comments or materials concerning this proposed rule in one of the following ways:
          (1) Through the Federal eRulemaking Portal at www.regulations.gov. Follow the instructions on the Web site for submitting comments.

          (2) By U.S. mail or hand-delivery to Public Comment Processing, Attention: 1018-AT50, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Suite 222, Arlington, VA 22203.

          We will not accept e-mail or faxes. 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).

          FOR FURTHER INFORMATION CONTACT:

          Office of the Assistant Secretary for Fish and Wildlife and Parks, 1849 C Street, NW., Washington, DC 20240; telephone: 202-208-4416; or James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; telephone: 301-713-2332.

        SUPPLEMENTARY INFORMATION:

        Background

        The Endangered Species Act of 1973, as amended (“Act”; 16 U.S.C. 1531 et seq.) provides that the Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for implementing most of the provisions of the Act. Generally, marine species are under the jurisdiction of the Secretary of Commerce and all other species are under the jurisdiction of the Secretary of the Interior. Authority to administer the Act has been delegated by the Secretary of the Interior to the Director of the FWS and by the Secretary of Commerce through the Administrator of the National Oceanic and Atmospheric Administration to the Assistant Administrator for NMFS.

        There have been no comprehensive amendments to the Act since 1988. With the exception of two section 7 counterpart regulations for specific types of consultations, there have been no comprehensive revisions to the implementing section 7 regulations since 1986. Since those regulations were issued, much has happened: The Services have gained considerable experience in implementing the Act, as have other Federal agencies, States, and property owners; there have been many judicial decisions regarding almost every aspect of section 7 of the Act and its implementing regulations; and the Government Accountability Office has completed reviews of section 7 implementation.

        We also propose these regulatory changes in response to new challenges we face with regard to global warming and climate change. On May 15, 2008, Secretary of the Interior Dirk Kempthorne announced that he would propose common sense modifications to the section 7 regulations to provide greater clarity and certainty to the consultation process. Particularly as we are confronted with new and more complex issues, it is important that we have a section 7 consultation process that clearly sets out key definitions and the applicability of that process. As we negotiate the complexities of consultations in the 21st century, we need to have a regulatory framework that supplies guidance to shape those consultations as envisioned by the Act.
        A 2004 GAO report on interagency collaboration during section 7 consultations found that although the Services had made improvements to the consultation process, it remained contentious between the Services and action agencies. In particular, the GAO found that action agencies continued to consider the consultation process burdensome. The GAO concluded that, given the unique requirements and circumstances of different species, a “healthy dose of professional judgment” from the Services would always be required, meaning there would always be some disagreements. Nevertheless, the GAO also concluded that the process could still be improved, and specifically recommended that the Services and other Federal agencies “resolve disagreements about when consultation is needed. * * *”
        The proposed regulations respond to this recommendation by allowing for a variety of documents prepared for other purposes to suffice for initiating consultation, and by allowing for action agencies to determine the effects of their own actions, without concurrence from the Service, in some very specific narrow situations. In addition, we propose to clarify the appropriate causation standard to be used in determining the effects of agency actions. Finally, we propose relatively minor procedural changes to “informal” consultations, including inserting time frames into the informal consultation process.
        In this preamble, we refer to the Fish and Wildlife Service as FWS and the National Marine Fisheries Service as NMFS. The word “Services” refers to both FWS and NMFS. We use the word “Service” when we describe a situation that could apply to either agency. We use the term “current regulations” to reference the 1986 section 7 regulations found at 50 CFR Part 402.
        Proposed Changes to 50 CFR Part 402
        Section 402.02 Definitions
        This section sets out definitions of terms that are used throughout the regulations. Discussed below are those definitions that are modified from the current regulations.

        “Biological Assessment.” We propose to add a sentence to the current regulatory definition of biological assessment to clarify that action agencies do not necessarily have to create a new document to comply with the requirement for a biological assessment. 50 CFR 402.12. If the information required to initiate consultation has been included in a document prepared for another purpose, we propose to allow action agencies to submit that document, rather than requiring them to create a new document to satisfy the requirements for initiating consultation as set out in 50 CFR 402.14(c). Because the contents of the biological assessment are not prescribed by regulation but rather are at the “discretion of the Federal agency and will depend on the nature of the Federal action,” this is a minor procedural change that will increase efficiency for the Federal action agency without impairing the Services' ability to perform their consultation role. See 50 CFR 402.12(f). We note, however, that it will be the Federal action agency's responsibility to describe with specificity where the relevant analyses for initiation of consultation can be found in the alternative document.

        “Cumulative effects.” We propose to amend the current regulatory definition of cumulative effects to clarify that the definition of “cumulative effects” under section 7 of the Act is not the same as the use of “cumulative impacts” in the National Environmental Policy Act (“NEPA”; 42 U.S.C. 4321, et seq.). The current ESA regulatory definition of cumulative effects (and this proposed definition) is narrower than the NEPA regulatory definition of cumulative impacts. NEPA defines “cumulative impact” as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. * * *” 40 CFR 1508.7. The term as used in the NEPA context includes the effects of future Federal actions and includes future actions that are merely “reasonably foreseeable” rather than reasonably certain to occur.
        We propose to further clarify that cumulative effects do not include future Federal activities. This is not a new concept; the current regulations also limit cumulative effects to future state or private actions. In fact, the preamble to the current regulations notes that “Since all future Federal actions will at some point be subject to the section 7 consultation process pursuant to these regulations, their effects on a particular species will be considered at that time and will not be included in the cumulative effect analysis.” 51 FR 19932 (June 3, 1986). Finally, we note that the preamble language cited above also establishes that the standard of “reasonably certain to occur” is an essential factor for both cumulative effects and indirect effects.
        “Effects of the action.” We propose to amend the current regulatory definition of “effects of the action.” The current definition of “effects of the action” establishes that indirect effects are effects that are “later in time,” “caused by” the action under consultation, and “reasonably certain to occur.” The current regulations, however, do not define “caused by” nor do they offer any guidance as to how to apply the phrase “reasonably certain to occur.” This lack of clarity has resulted in many disagreements between action agencies and the Services. We propose to offer more guidance in this definition as to what constitutes “caused by” and “reasonably certain to occur” to ensure consistent application of what we believe are the current and appropriate definitions of these terms.

        Initially, we want to emphasize that both in the current regulations and these proposed regulations, an effect must both be caused by the action under consultation and must be “reasonably certain to occur” before it can be included in the effects analysis. It is a two-part test and both parts must be met. We propose to add language to the “effects of the action” definition to define “indirect effects” as those effects “for which the proposed action is an essential cause, and that are later in time, but still are reasonably certain to occur.” Further, we propose to add language to establish that reasonably certain to occur “is the standard used to determine the requisite confidence that an effect will happen. A conclusion that an effect is reasonably certain to occur must be based on clear and substantial information.” We are proposing this language to provide some additional clarity regarding the nature of the parameters for the effects analysis so that the effects analysis will focus on those effects that can meaningfully be considered in the context of the action under consultation. We believe this proposed added language will allow action agencies and the Services to determine more readily the effects of the action and thus to determine if the action will jeopardize the species or adversely modify or destroy critical habitat, thereby focusing consultation on those effects that can be meaningfully addressed. This will simplify the consultation process and make it less burdensome and time-consuming.
        We think it is appropriate to require that for an indirect effect to be considered as an effect of the action under consultation that action must be an “essential cause” of that effect. We propose to use the term “essential” to denote that the action is necessary for that effect to occur. That is, the effect would not occur “but for” the action under consultation and the action is indispensable to the effect. Our intent is to clarify that there must be a close causal connection between the action under consultation and the effect that is being evaluated. As we noted in our proposed language, “if an effect would occur whether or not the action takes place, the action is not a cause of the direct or indirect effect.” As discussed above, our intention with the proposed language is to limit the effects analysis only to those effects that are appropriate; if an effect would occur regardless of the action, then it is not appropriate to require the action agency to consider it an effect of the action. However, it may be appropriate to address it as it relates to the baseline or cumulative effects analysis.
        We propose to add the word “essential” to capture the requirement that in some instances there needs to be more than a technical “but for” connection. For example, if the action under consultation is issuance of a U.S. Army Corps of Engineers (Corps) permit (in this example, the only Federal permit needed for the project) necessary to allow a lengthy pipeline to cross a narrow waterway, one could argue that “but for” the Corps' permit to cross the waterway, the pipeline could not be constructed and none of the future effects from the construction or operation of that lengthy pipeline would occur. Therefore, under this line of reasoning, in addition to considering the effects of the crossing (the permitted activity) on protected species in the area, the Corps would also have to consider the effects of the construction and operation of the entire pipeline on threatened or endangered species. But because the permitted crossing is not essential to the entire pipeline (e.g., the route and design of the pipeline for most of its length, except in the immediate vicinity of the crossing, is not determined by the crossing), it is no more than a marginal contributor to the effects of the construction and operation of that pipeline. In other words, there is an insufficient causal connection to attribute all of the future effects of the construction and operation of the pipeline to the Corps' permit.
        On the other hand, an action to build a marina (in an area where there is currently no boat traffic) may also need a permit from the Corps. In this case, the permitted activity itself (building the marina) is an essential cause of the future effects (increased boat traffic) that are related to the building of the marina. The marina cannot be built without the permit, and the permit will largely determine the capacity, configuration, etc. of the entire marina, and therefore is an essential cause of any effects resulting from the building of the marina as permitted. By contrast, in the first example, the planned waterway crossing (the action under consultation) will not determine or even significantly affect the construction and operation of the pipeline except in the vicinity of the crossing. The crossing should not be seen, therefore, as an essential cause of future effects associated with the construction and operation of the entire pipeline.
        We also propose to add language to the definition of “effects of the action” to further explain that “reasonably certain to occur” is the standard used to determine that an effect will happen. As noted above, the “reasonably certain to occur” standard is in the current regulations. We propose to add the requirement that there be “clear and substantial information” that the effect will happen. Our intention is to make it clear that the effect cannot just be speculative and that it must be more than just likely to occur. We also intend to emphasize that “reasonably certain to occur” is not the equivalent of NEPA's reasonably foreseeable standard. It is a narrower standard.
        We believe the proposed language to require “clear and substantial” information is within the intent of the current regulations. We note that the preamble to the current regulations discusses the difference between NEPA and the Act at length and concludes that “Congress did not intend that Federal action be precluded by such speculative actions.” 51 FR 19932 (June 3, 1986). Further, the preamble discusses, with regard to cumulative effects, that the Federal agency and the Service must bear in mind the “economic, administrative, or legal hurdles which remain to be cleared” before determining if the standard of “reasonably certain to occur” has been met. By proposing this language, we intend to endorse that preamble language and emphasize that there must be information, which is clear and substantial, that demonstrates that the effect is reasonably certain to occur.
        Section 402.03 Applicability

        This proposed section would define the applicability of these regulations. The current regulations state that section 7 applies to “all actions in which there is discretionary Federal involvement or control.” 50 CFR 402.03. The first sentence of paragraph (a) of this proposed section reiterates the constraint that section 7 only applies to discretionary agency actions. We note that the Supreme Court recently upheld the Services' determination in the current regulations that section 7 applies only to discretionary agency actions. National Home Builders v. Environmental Protection Agency, 127 S. Ct. 2518 (2007).
        In paragraph (b), we propose to add new language to this section to delineate when section 7 is not applicable. For all the subparagraphs set out under paragraph (b) a threshold requirement is that no take is anticipated. Action agencies must be aware that when they make a determination that their action falls under one of the subparagraphs of paragraph (b), they are asserting that they do not anticipate take.
        In paragraph (b)(1) we propose to add language that action agencies are not required to consult on those actions for which they determine their action will have “no effect” on listed species or critical habitat. Although the current regulations do not explicitly state that consultation is not required when a Federal action agency determines that its action will have no effect on listed species or critical habitat, an evaluation of the current regulations makes it clear that no consultation was contemplated for these situations; the current regulations only require Federal action agency consultation when there is a determination that an action “may affect” a listed species or designated critical habitat. 50 CFR 402.14(a). By policy and practice the Services have consistently determined that consultation is not required when an action has no effect on listed species or critical habitat.

        In proposed paragraphs (b)(2) and (3), we intend to exclude from consultation those actions the effects of which are so inconsequential, uncertain, unlikely or beneficial that they are, as a practical matter, tantamount to having no effect on listed species or critical habitat. Again, an important threshold requirement for this subparagraph is that the action agency does not anticipate any take from the action under consultation with regard to the effect in question.
        In proposed paragraph (b)(2), we propose to exclude from consultation actions that are “insignificant contributor[s]” to any effect on listed species or critical habitat. In proposed paragraph (b)(3), we propose to exclude from the consultation requirement those effects of an action that are not capable of being meaningfully identified or detected in a manner that permits evaluation; or, are wholly beneficial; or, are such that the potential risk of jeopardy to the listed species is remote. This proposed language broadly tracks language from the Services' joint consultation handbook with regard to those actions that “may affect” but are “not likely to adversely affect” (NLAA) listed species or critical habitat. The Final Endangered Species Consultation Handbook (March 1998) defines “not likely to adversely affect” as:
        * * * the appropriate conclusion when effects on listed species are expected to be discountable, insignificant, or completely beneficial. Beneficial effects are contemporaneous positive effects without any adverse effects to the species. Insignificant effects relate to the size of the impact and should never reach the scale where take occurs. Discountable effects are those extremely unlikely to occur. Based on best judgment, a person would not (1) be able to meaningfully measure, detect, or evaluate insignificant effects; or (2) expect discountable effects to occur. Final Endangered Species Consultation Handbook, March 1998, “Glossary of Terms used in Section 7 Consultations,” p. xv.
        Finally, we propose to add language to the applicability section by noting that if an action has one or more effects that fall outside paragraph (b) the Services and action agencies need only consider the effects that fall outside paragraph (b) when consulting on the action. The current regulations require that action agencies submit in writing a “description of the manner in which the action may affect any listed species or critical habitat. * * *” 50 CFR 402.14(c). We anticipate that an action agency can limit this description to those effects that fall outside of paragraph (b).
        The intent of these proposed exclusions is to reduce the number of unnecessary consultations. Under the current regulations, the type of effects set out in paragraph (b)(3) could require consultation; that is, an action agency must consult if the action “may affect” a listed species or critical habitat, although the action agency can submit a proposed “not likely to adversely affect” determination to the Service. The Service can then concur with that determination and the consultation obligation is satisfied for the action agency. 50 CFR 402.14(b). In cases where the Service has concurred with a “not likely to adversely affect” determination made by a Federal action agency, there would be no need for an incidental take statement because no take would be anticipated. There also would never be a jeopardy or an adverse modification determination because if the nature of the effects involved rose to that level, the Services would not concur.
        To achieve the goal of reducing unnecessary consultations, the proposed language allows a Federal action agency to make a “not likely to adversely affect” determination without concurrence from the Services in limited circumstances. The Services believe this is appropriate for several reasons. First, the Services see little value in consulting on actions that satisfy the criteria in proposed 402.03(b), including no anticipated take, just as we see little value in consulting in “no effect” situations. Many Federal action agencies have now had decades of experience with section 7. The Services believe that Federal action agencies are fully qualified to make these determinations in the limited circumstances provided for in the proposed rule. In light of the tremendous workload and consumption of resources that consultations require, the Services believe it is not an efficient use of limited resources to review literally thousands of proposed Federal agency actions in which take is not anticipated and the potential effects are either insignificant, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy or adverse modification or destruction of critical habitat. The Services have determined that actions satisfying these criteria will not cause adverse effects on listed species and that Federal action agencies are qualified to determine that their actions satisfy these criteria. Finally, Federal action agencies have strong incentives to make these determinations accurately. Federal action agencies are well aware that take is not authorized without an incidental take statement (which can only be obtained through formal consultation) and that ultimately it is they who must ensure that it is not likely that their action will jeopardize the continued existence of listed species or adversely modify or destroy designated critical habitat.

        The Services are proposing these changes to the applicability of section 7 as part of our administrative authority and interpretive authority under the Act. The Services have the authority to determine what constitutes “consultation” and when consultation is triggered. Section 7(a)(2) of the Act requires that Federal action agencies, in consultation with the Secretary, ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify or destroy critical habitat. But, the Act does not define “consultation” nor does it define when the consultation obligation is triggered. Congress left the crafting of the consultation process, including the trigger for consultations, with the Services. See Sweet Home v. Babbitt, 515 U.S. 687, 708 (1995) (Congress delegated broad administrative and interpretive power to the Secretary in the Act to define terms).
        In 1986, using our administrative and interpretive authority, the Service promulgated general consultation regulations (the “current regulations”) that established a tiered consultation process. 50 CFR 402.01-402.16. These regulations, not the Act, established a “may affect” trigger for consultations, an informal level of consultation for actions that are “not likely to adversely affect” and formal consultation for those actions that are likely to adversely affect listed species or critical habitat. Under the current regulations, a Federal action agency can determine that its action is not likely to adversely affect listed species or designated critical habitat but then must seek and gain concurrence from the Services.

        In 1986, this tiered process made sense. Very few Federal action agencies had any in-depth expertise with section 7 and listed species. For that matter, the more complex consultation process was relatively new to the Services as well. We erred on the side of over inclusion because our consultation experience and history was so limited at that time. After decades of experience and literally thousands of consultations per year, however, we have concluded that there is no gain in requiring Federal action agencies to consult, even informally, for those potential effects described in proposed paragraphs (b)(2) and (b)(3). We recognize that Federal action agencies have more expertise now than in 1986 and are much more aware of the consequences and significance of their findings. That is, Federal action agencies are more informed about the Act as a whole and more aware of the ramifications of not making conscientious and thoughtful determinations under the Act. Federal action agencies understand that there are significant consequences if they were to take an action that resulted in prohibited take without an exemption through the section 7 process. Further, the Federal action agencies will continue to have the option of “informal consultation” under 50 CFR 402.13 for those situations when an action does not satisfy the criteria of 402.03(b) or the action agency seeks the Services' expertise.
        These regulations would reinforce the Services' current view that there is no requirement to consult on greenhouse gas (GHG) emissions' contribution to global warming and its associated impacts on listed species (e.g., polar bears).
        For example, when a Federal agency provides funding for a new highway, vehicle use of the highway may result in changes in GHG emissions. The proposed revisions make explicit that while the impact of tailpipe emissions on local air pollution could be an effect of the action, the GHG emissions' contribution to global warming and associated impacts to listed species (e.g., polar bears) are not, and the effects of those impacts would not need to be considered in any consultation.

        First, GHG emissions from building one highway are not an “essential cause” of any impacts associated with global warming. Moreover, any such effects are later in time, but are not reasonably certain to occur (i.e., a finding that an effect is reasonably certain to occur must be based on clear and substantial information, cannot be speculative, and must be more than just likely to occur). For both reasons, impacts associated with global warming do not constitute “effects of the action” under the proposed revision to that definition. See proposed 50 CFR 402.02, 402.03(b)(1), (c).
        Even if these impacts would otherwise fall within the definition of “effects of the action,” they need not be considered in any consultation because under the proposed Applicability section the building of one highway is “an insignificant contributor” to any such impacts. Further, any impacts associated with the GHG emissions from the building of one highway are “not capable of being meaningfully identified or detected in a manner that permits evaluation” and “are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat [from those GHG emissions] is remote.” See proposed 50 CFR 402.03(b)(2)-(3), (c).
        For the reasons discussed above, the Services believe the proposed changes to the current regulations are appropriate. Further, we believe them to be in compliance with the Act. As discussed above, the Act does not set the requirement for consultation. Rather, the Act requires that Federal action agencies consult with the Secretary to ensure that their actions are not likely to jeopardize listed species or adversely modify or destroy designated critical habitat. The Act then requires the Secretary to issue an opinion to help action agencies meet this obligation of ensuring that it is not likely that their action will result in jeopardy or adverse modification or destruction of critical habitat. For the reasons discussed above, just as we have determined in the past that an opinion from the Secretary is not necessary for “no effect” actions, we believe the Secretary's opinion is not necessary for those potential effects set out in proposed paragraphs (b)(2) and (b)(3).
        Section 402.13 Informal Consultation
        We have retained this section for those cases when an action does not satisfy the criteria of 402.03(b) or the action agency seeks the Services' expertise. We propose to add language that informal consultation can include “a number of similar actions, an agency program, or a segment of a comprehensive plan.” This proposed language is similar to language found under formal consultation in 50 CFR 402.14(c). Here, however, we do not propose to require the Director's approval, as the regulations do for formal consultation. We believe this is appropriate because informal consultation, even for grouped actions, would never be sufficient for actions that are expected to result in take or in the destruction or adverse modification of critical habitat or for an action that was likely to jeopardize the continued existence of the species. The analysis, then, should be less complex than what would be necessary for formal consultation.
        In new proposed paragraph (b), we propose to add time deadlines to help limit the duration of informal consultation and lend greater certainty to the process. Specifically, we propose to allow action agencies to terminate consultation if the Service has not acted on its request for concurrence within 60 days. We are proposing, however, to allow the Services to advise the action agency that 60 days is not enough time to review the request for concurrence. In those cases, the Service would receive 60 more days to review the request for concurrence. Finally, we propose to allow the action agency to terminate the consultation, with written notice to the Service, if there is no written determination from the Service within the appropriate time frame.
        We believe this proposal to be reasonable because an action agency would only be requesting concurrence for actions that are not expected ever to jeopardize the continued existence of a listed species or result in adverse modification or destruction of critical habitat. Only in situations where no take is anticipated would an agency request a concurrence on a not likely to adversely affect determination through informal consultation. Without the proposed time limitations, informal consultations can actually become longer and more drawn out than formal consultations. It is our hope that the new deadlines will make informal consultation a shorter, more efficient and more predictable process, as it was intended to be. Finally, we believe the proposed language which allows for action agencies to terminate consultation if the action agency does not receive a determination from the Service within the specified time frame is appropriate under the narrow circumstances in which it would come into play. The Services request comment on this provision and on the appropriate status with respect to concurrence of actions for which informal consultation is terminated pursuant to the proposed text.
        Section 402.14 Formal Consultation
        We propose a minor change to this section to reflect changes in the informal consultation sections of the regulations. Specifically, we propose to change the “exception” language in § 402.14 to note that informal consultation may be concluded without the written concurrence of the Director under the circumstances in § 402.13(b).
        Required Determinations
        Regulatory Planning and Review
        In accordance with Executive Order 12866, we have determined that this document is a significant rule. As such, it was reviewed by the Office of Management and Budget (OMB) and other interested Federal agencies.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 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 effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions), unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.
        Pursuant to the Regulatory Flexibility Act, the Secretaries of the Interior and Commerce certify that this regulation will not have a significant economic impact on a substantial number of small entities. The rule applies only to Federal agencies and does not regulate, either directly or indirectly, any small entities.
        Executive Order 13211
        On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Although this rule is a significant action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
        (a) These regulations will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. We expect that these regulations will not result in any significant additional expenditures by entities that develop formalized conservation efforts.
        (b) These regulations will not produce a Federal mandate on State, local, or tribal governments or the private sector of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. These regulations impose no obligations on State, local, or tribal governments.
        Takings
        In accordance with Executive Order 12630, these regulations do not have significant takings implications. These regulations have no impact on personal property rights.
        Federalism
        In accordance with Executive Order 13132, these regulations do not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Commerce regulations under section 7 of the Act, we coordinated development of these regulations with appropriate resource agencies throughout the United States.
        Civil Justice Reform
        In accordance with Executive Order 12988, this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We promulgate these regulations consistent with the Act.
        Paperwork Reduction Act

        This rule will not impose any new requirements for collection of information that require approval by the OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number.
        National Environmental Policy Act
        The Services will conduct an analysis pursuant to the National Environmental Policy Act prior to finalizing these proposed regulations. The FWS and NMFS are considered the lead Federal agencies for the preparation of this proposed rule, pursuant to 40 CFR part 1501.
        Clarity of This Rule
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (a) Be logically organized;
        (b) Use the active voice to address readers directly;
        (c) Use clear language rather than jargon;
        (d) Be divided into short sections and sentences; and
        (e) Use lists and tables wherever possible.

        If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
        Public Comments

        You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. On May 15, the Secretary of the Interior (Secretary) announced that the Department of the Interior would propose common sense modifications to the section 7 regulations to provide greater clarity and certainty to the consultation process. We believe that as we are confronted with new and increasingly complex issues, it is important to have a section 7 consultation process that sets out key definitions in a timely and expeditious manner. Therefore, given the need for timely action and consistent with existing policy, the Services have determined that a public comment period of 30 days is appropriate. Moreover, given the narrow scope of the proposed revisions, we believe a 30 day public comment period provides the public with a reasonable opportunity to review the proposal and prepare comments. We must receive your comments by the date specified in the DATES section to ensure their full consideration in the final decision on this proposal.
        Public Availability of Comments
        Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
        Government-to-Government Relationship With Indian Tribes

        In accordance with the Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); E.O. 13175; and the Department of the Interior's 512 DM 2, we understand that we must relate to recognized Federal Indian Tribes on a Government-to-Government basis. These regulations apply only to Federal agencies, not Indian Tribes. To the extent that Federal actions requiring consultation may indirectly affect Tribes, the regulations are intended only to streamline the administration of the Act; not to change any substantive requirements concerning protection of listed species; therefore, any indirect effect would be minimal.

          List of Subjects in 50 CFR Part 402
          Endangered and threatened species.

          Dated: August 11, 2008.
          Lyle Laverty,
          Assistant Secretary for Fish and Wildlife and Parks,  Department of the Interior.
          Dated: August 11, 2008.
          Samuel D. Rauch,
          Deputy Assistant Administrator for Regulatory Programs,  National Marine Fisheries Service, National Oceanic and Atmospheric Administration.

        For the reasons set forth in the preamble, the Services propose to amend part 402, title 50 of the Code of Federal Regulations as follows:

          PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED
          1. The authority for part 402 continues to read as follows:

            Authority:
            16 U.S.C. 1531,  et seq.

          2. In § 402.02 revise the definitions for “Biological assessment,” “Cumulative effects,” and “Effects of the action” to read as follows:

            § 402.02
            Definitions.

            “Biological assessment” means the information prepared by or under the direction of the Federal agency concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation of potential effects of the action on such species and habitat. A biological assessment may be a document prepared for the sole purpose of interagency consultation, or it may be a document or documents prepared for other purposes (e.g., an environmental assessment or environmental impact statement) containing the information required to initiate consultation.

            “Cumulative effects” means those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the particular Federal action subject to consultation. Cumulative effects do not include future Federal activities that are physically located within the action area of the particular Federal action under consultation.

            “Effects of the action” means the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. Indirect effects are those for which the proposed action is an essential cause, and that are later in time, but still are reasonably certain to occur. If an effect will occur whether or not the action takes place, the action is not a cause of the direct or indirect effect. Reasonably certain to occur is the standard used to determine the requisite confidence that an effect will happen. A conclusion that an effect is reasonably certain to occur must be based on clear and substantial information. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration.

            3. Revise § 402.03 to read as follows:

            § 402.03
            Applicability.
            (a) Section 7 of the Act and the requirements of this part apply to all actions in which the Federal agency has discretionary involvement or control.
            (b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
            (1) Such action has no effect on a listed species or critical habitat; or
            (2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
            (3) The effects of such action on a listed species or critical habitat:
            (i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
            (ii) Are wholly beneficial; or
            (iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.
            (c) If all of the effects of an action fall within paragraph (b) of this section, then no consultation is required for the action. If one or more but not all of the effects of an action fall within paragraph (b) of this section, then consultation is required only for those effects of the action that do not fall within paragraph (b) of this section.
            4. Revise § 402.13 to read as follows:

            § 402.13
            Informal consultation.
            (a) Informal consultation is an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency or the designated non-Federal representative, designed to assist the Federal agency in determining whether formal consultation or a conference is required. If during informal consultation it is determined by the Federal agency that the action, or a number of similar actions, an agency program, or a segment of a comprehensive plan, is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary, if the Service concurs in writing. For all requests for informal consultation, the Federal agency shall consider the effects of the action as a whole on all listed species and critical habitats.
            (b) If the Service has not provided a written statement regarding whether it concurs with a Federal agency's determination provided for in paragraph (a) of this section within 60 days following the date of the Federal agency's request for concurrence, the Federal agency may, upon written notice to the Service, terminate consultation. The Service may, upon written notice to the Federal agency within the 60-day period, extend the time for informal consultation for a period no greater than an additional 60 days from the end of the 60-day period.
            (c) During informal consultation, the Service may suggest modifications to the action that the Federal agency and any applicant could implement to avoid the likelihood of adverse effects to listed species or critical habitat.
            5. In § 402.14 revise paragraphs (a) and (b)(1) to read as follows:

            § 402.14
            Formal consultation.
            (a) Requirement for formal consultation. Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required, except as noted in paragraph (b) of this section. The Director may request a Federal agency to enter into consultation if he identifies any action of that agency that may affect listed species or critical habitat and for which there has been no consultation. When such a request is made, the Director shall forward to the Federal agency a written explanation of the basis for the request.
            (b) Exceptions. (1) A Federal agency need not initiate formal consultation if, as a result of the preparation of a biological assessment under § 402.12 or as a result of informal consultation with the Service under § 402.13, the Federal agency determines that the proposed action is not likely to adversely affect any listed species or critical habitat, and the Director concurs in writing or informal consultation has terminated under § 402.13(b) without a written determination by the Service as to whether it concurs;

      [FR Doc. E8-18938 Filed 8-13-08; 11:15 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF THE TREASURY
        Internal Revenue Service
        26 CFR Part 1
        [REG-156420-06]
        RIN 1545-BG25
        Anti-Avoidance and Anti-Loss Reimportation Rules Applicable Following a Loss on Disposition of Stock of Consolidated Subsidiaries

          AGENCY:
          Internal Revenue Service (IRS), Treasury.

          ACTION:
          Notice of proposed rulemaking by cross-reference to temporary regulations.

          SUMMARY:

          In the Rules and Regulations section of this issue of the Federal Register, the IRS is issuing temporary regulations under section 1502 of the Internal Revenue Code (Code). The temporary regulations provide guidance to corporations filing consolidated returns. The temporary regulations apply an anti-avoidance rule and revise an anti-loss reimportation rule that applies after a disposition of stock of a subsidiary at a loss. The text of those regulations also serves as the text of these proposed regulations.

          DATES:
          Written or electronic comments or a request for a public hearing must be received by July 9, 2007.

          ADDRESSES:

          Send submissions to CC:PA:LPD:PR (REG-156420-06), room 5203 Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-156420-06), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at www.regulations.gov (IRS-REG-156420-06).

          FOR FURTHER INFORMATION CONTACT:

          Concerning the proposed regulations, Theresa Abell (202) 622-7700 or Phoebe Bennett (202) 622-7770; concerning submission of comments and request for public hearing, Richard Hurst at Richard.A.Hurst@irscounsel.treas.gov or (202) 622-7180 (not toll free numbers).

        SUPPLEMENTARY INFORMATION:

        Background and Explanation of Provisions

        Temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 1502. The temporary regulations provide guidance to corporations filing consolidated returns. The temporary regulations apply an anti-avoidance rule and revise an anti-loss reimportation rule that applies following a disposition of stock of a subsidiary at a loss. The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the amendments.
        Special Analyses
        It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12666. Therefore, a regulatory assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that these regulations primarily will affect affiliated groups of corporations that have elected to file consolidated returns, which tend to be larger entities. Therefore, a Regulatory Flexibility Analysis under Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
        Comments and Requests for Public Hearing

        Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.
        Drafting Information
        The principal author of these regulations is Phoebe Bennett, Office of the Associate Chief Counsel (Corporate). However, other personnel from the IRS and Treasury Department participated in their development.

          List of Subjects in 26 CFR Part 1
          Income taxes, Reporting and recordkeeping requirements.

        Proposed Amendments to the Regulations
        Accordingly, 26 CFR part 1 is proposed to be amended as follows:

          PART 1—INCOME TAXES

            Paragraph 1. The authority citation for part 1 is amended by adding an entry in numerical order to read as follows:

            Authority:
            26 U.S.C. 7805 * * *

            Par. 2. Section 1.1502-32 is amended by revising paragraph (b)(3)(iii)(D) and adding paragraph (k) to read as follows:

            § 1.1502-32
            Investment adjustments.

            (b) * * *
            (3) * * *
            (iii)* * *

            (D) [The text of the proposed amendment to § 1.1502-32(b)(3)(iii)(D) is the same as the text of § 1.1502-32T(b)(3)(iii)(D) published elsewhere in this issue of the Federal Register].

            (k) [The text of the proposed amendment to § 1.1502-32(k) is the same as the text of § 1.1502-32T(k) published elsewhere in this issue of the Federal Register].

              Par. 3. Section 1.1502-35 is amended by:
            1. Revising paragraphs (g)(3) and (h).
            2. Adding new paragraph (g)(6).
            3. Revising paragraph (j).
            The revisions and additions read as follows:

            § 1.1502-35
            Transfers of subsidiary stock and deconsolidations of subsidiaries.

            (g) * * *

            (3) [The text of the proposed amendment to § 1.1502-35(g)(3) is the same as the text of § 1.1502-35T(g)(3) published elsewhere in this issue of the Federal Register].

            (6) [The text of the proposed amendment to § 1.1502-35(g)(6) is the same as the text of § 1.1502-35T(g)(6) published elsewhere in this issue of the Federal Register].

            (h) [The text of the proposed amendment to § 1.1502-35(h) is the same as the text of § 1.1502-35T(h) published elsewhere in this issue of the Federal Register].

            (j) [The text of the proposed amendment to § 1.1502-35(j) is the same as the text of § 1.1502-35T(j) published elsewhere in this issue of the Federal Register].

            Linda M. Kroening,
            Acting Deputy Commissioner for Services and Enforcement.

       [FR Doc. E7-6534 Filed 4-9-07; 8:45 am]
      BILLING CODE 4830-01-P


        GENERAL SERVICES ADMINISTRATION
        48 CFR Parts 516 and 552
        [GSAR Case 2006-G504; Docket 2008-0007; Sequence 7]
        RIN 3090-AI58
        General Services Acquisition Regulation; GSAR Case 2006-G504; Rewrite of GSAR Part 516; Types of Contracts

          AGENCY:
          Office of the Chief Acquisition Officer, General Services Administration (GSA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The General Services Administration (GSA) is proposing to amend the General Services Acquisition Regulation (GSAR) to revise language pertaining to requirements for types of contracts.

          DATES:
          Interested parties should submit written comments to the Regulatory Secretariat on or before September 8, 2008 to be considered in the formulation of a final rule.

          ADDRESSES:
          Submit comments identified by GSAR Case 2006-G504 by any of the following methods:

        • Regulations.gov: http://www.regulations.gov.Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2006-G504” under the heading “Comment or Submission.” Select the link “Send a Comment or Submission ” that corresponds with GSAR Case 2006-G504. Follow the instructions provided to complete the “Public Comment and Submission Form.” Please include your name, company name (if any), and “GSAR Case 2006-G504” on your attached document.
        • Fax: 202-501-4067.
        • Mail: General Services Administration, Regulatory Secretariat Division (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann Duarte, Washington, DC 20405.

          Instructions: Please submit comments only and cite GSAR Case 2006-G504 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

          FOR FURTHER INFORMATION CONTACT:

          For clarification of content, contact Ms. Cecelia Davis at (202) 219-0202, or by e-mail at Cecelia.Davis@gsa.gov. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4035, GS Building, Washington, DC 20405, (202) 501-4755. Please cite GSAR Case 2006-G504.

        SUPPLEMENTARY INFORMATION:
        A. Background
        The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to revise the prescriptions for clauses included in GSAR 516.203-4, Contract clauses, and GSAR 516.506, Solicitation provisions and contract clauses, and to make minor changes to GSAR 516.603-3, Limitations. The associated clauses located in GSAR 552.216 are amended to relocate the clause at 552.216-70, Economic Price Adjustment—FSS Multiple Award Schedule Contracts, to GSAR 552.238, to retain the clause at 552.216-71, Economic Price Adjustment-Stock and Special Order Program Contracts, to revise GSAR clause 552.216-72, Placement of Orders, to make minor edits to GSAR clause 552.216-73, Ordering Information, and to include new GSAR clause 552.216-XX, Task-Order and Delivery-Order Ombudsman.
        This proposed rule is a result of the General Services Administration Acquisition Manual (GSAM) Rewrite initiative. The initiative was undertaken by GSA to revise the GSAM to maintain consistency with the FAR and implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the General Services Administration Acquisition Regulation (GSAR) as well as internal agency acquisition policy.

        GSA will rewrite each part of the GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the Federal Register.
        This proposed rule revises GSAR 516.203-4, Contract clauses, 516.506, Solicitation provisions and contract clauses, and associated clauses in GSAR 552.516. The information in GSAR 516.203-4(a) is relocated to GSAR Part 538 and paragraph (b) is renumbered accordingly and contains minor edits. GSAR 516.506 is revised to delete paragraphs (b), (c), (d), and (e) from this part and relocate them to GSAR Part 538. New GSAR clause, 552.216-XX, Task-Order and Delivery-Order Ombudsman, is added to describe the GSA Ombudsman’s responsibilities. GSAR 516.603-3, Limitations, is renumbered as 516.603-70 as a supplement to the FAR and the title is changed to “Limitations” on the use of letter contracts for architect-engineer (A-E) services. GSAR clause 552.216-70, Economic Price Adjustment—FSS Multiple Award Schedule Contracts, is relocated to GSAR Part 538. The GSAR clause at 552.216-72, Placement of Orders, is revised to delete Alternates II, III, and IV and relocate them to GSAR Part 538, and it contains minor edits. The GSAR clause at 552.216-73, Ordering Information, contains minor edits.
        Discussion of Comments

        There were six public comments received in response to the “Advanced Notice of Proposed Rulemaking.” The first commenter suggested that the GSAR should include coverage on Governmentwide acquisition contracts (GWAC) and the use of GSA assisted services. The GWAC and assisted services are very closely related: GSA’s assisted services are offered through GWAC contracts. GWACs are negotiated acquisitions covered by FAR Part 15 (GSAM 515), while FAR Part 16 (GSAM Part 516) covers the authority for GWACs (i.e., IDIQ contracts). Both GSAM parts are in the rewrite effort so, to a degree, the comment is being addressed. During our rewrite process, our proposed coverage of GWACs and assisted services was determined to be satisfactory by the cognizant office within FAS. We construe the comment, however, to mean that the GSAM should devote a special section to GWACs and assisted services, such as is done in GSAM 538 which addresses the Federal Supply Schedule Program. The suggestion is not without merit: however, it is outside the scope of the current GSAM effort, which did not envision the creation of new GSAM parts. The current effort has revealed a number of issues that need to be addressed in future updates to the GSAM and we propose to revisit that comment when future revisions are considered. The second commenter suggested establishing a central location for all contract clauses GSA includes in FSS and GWAC contracts: in particular, the clauses denoted as “x-FSS clauses.” One of the purposes of the GSAM rewrite is to put all clauses used by GSA in the GSAM. While this goal may not be 100 percent achieved in the initial rewrite effort, at some point in time all clauses will be in one place—the GSAM.

        The third and fourth commenter submitted a response that said GSA schedule holders are penalized because they are subject to the Economic Price Adjustment clause limiting price increase to 10 percent after a one-year waiting period. GSAR clauses 552.216-70 and 552.216-71 establish contract coverage for economic price adjustments under Multiple Award Schedules (MAS) and Global Supply Item contracts, respectively. With respect to the MAS, GSAR clause 552.216-70, this comment will be addressed in the coverage for GSAR Part 538. GSAR clause 552.216-71 indicates that there is a 10 percent cap on such adjustments unless the Contracting Director approves a higher percentage. In addition, the percentage actually used should be based on historical trends drawn from an index such as the Producer Price Index (PPI). In these cases, the GSAR mirrors the FAR’s guidance on economic price adjustments for standard supplies (non-Schedule) as outlined in FAR clause 52.216-2, which also includes the 10 percent cap. Accordingly, the GSAR coverage (meant to be used for a subset of all supply contracts, specifically FAS Schedules) follows the FAR, and the change requested would require a change to the FAR and cannot be made independently in the GSAR. Also, the GSAR makes clear that the percentage used in Schedule contracts (whether above or below 10 percent) is to be based on established historical trends (PPI) and not on a negotiation between one agency and one contractor on each individual contract. This allows the percentage established for each contract to be based on objective data. This percentage should normally be 10 percent, unless based on a trend established by an appropriate index such as the Producer Prices and Price Index during the most recent 6-month period indicates that a different percentage is more appropriate. The fifth commenter recommended that the GSAR be revised to clarify that subcontractor labor hours under a Time and Material (T&M) contract are paid at the rates established in the prime contract or task order. Although the recommendation references “Time and Material” contracts, the issue deals with contract financing and should be addressed in GSAM Part 532, Contract Financing. The sixth commenter recommended that the GSAR be revised to provide that contractors may apply G&A to travel costs and other direct changes in accordance with each vendor’s approved cost accounting standards disclosure statement. This issue will be addressed in the rewrite of GSAR Part 531.

        This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        B. Regulatory Flexibility Act

        The General Services Administration does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because revisions are not considered substantive. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. GSA will consider comments from small entities concerning the affected GSAR Parts 516 and 552 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (GSAR case 2006-G504), in correspondence.
        C. Paperwork Reduction Act

        The Paperwork Reduction Act does not apply because the proposed changes to the GSAM do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

          List of Subjects in 48 CFR Parts 516 and 552
          Government procurement.

          Dated: July 2, 2008
          Al Matera,
          Director, Office of Acquisition Policy.

        Therefore, GSA proposes to amend 48 CFR parts 516 and 552 as set forth below:
        1. The authority citation for 48 CFR parts 516 and 552 is revised to read as follows:

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

          PART 516—TYPES OF CONTRACTS

        2. Amend section 516.203-4 by—
        a. Removing paragraph (a), and redesignating paragraphs (b) and (c) as (a) and (b), respectively;
        b. Revising the newly redesignated paragraph (a);
        c. Removing from the newly redesignated paragraph (b)(1) “you decide” and adding “the contracting officer decides” in its place; and
        d. Removing the period from the end of the newly redesignated paragraphs (b)(1)(i) and (b)(1)(ii) and adding a semicolon in its place; and removing the period from the newly redesignated paragraph (b)(1)(iii) and adding “; and ”in its place.
        The revised text reads as follows:

          516.203-4
          Contract clauses.
          (a) Special Order Program Contracts. In multiyear solicitations and contracts, after making the determination required by FAR 16.203-3, use 552.216-71, Economic Price Adjustment-Stock and Special Order Program Contracts, or a clause prepared as authorized in paragraph (a)(3) of this subsection.

          3. Amend section 516.506 by—
          a. Removing from paragraph (a), “FSS” each time it appears and adding “FAS”, in its place; and
          b. Removing paragraphs (b), (c), (d), and (e) and adding new paragraph (b), to read as follows:

          516.506
          Solicitation provisions and contract clauses.

          (b) In solicitations and contracts for GSA awarded IDIQ contracts, insert the clause 552.216-XX, Task-Order and Delivery-Order Ombudsman.
          4. Amend section 516.603-3 by—
          a. Revising the section heading;
          b. Revising paragraph (a);
          c. Removing from the introductory text of paragraph (b) “You” and adding “The contracting officer”, in its place, and revising paragraph (b)(1); and
          d. Removing from paragraph (c) “you must issue” and adding “the contracting officer issues,” in its place.
          The revised text reads as follows:

          516.603-70
          Limitations on the use of letter contracts for architect-engineer (A-E) services.
          (a) Requirement for a price proposal. The proposed A-E must provide a price proposal for the non-design effort before the award of a letter contract.
          (b) * * *
          (1) The scope. If the scope includes the design effort, the contracting officer should only authorize the A-E to perform those services that are independent of the design effort (for example, feasibility studies, existing facility surveys or site investigation, etc.). Do not authorize the A-E to begin the design effort before the letter contract is definitized.

          PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

          552.216-70
          [Removed]
          5. Remove section 552.216-70.

          552.216-71
          [Amended]
          6. Amend section 552.216-71 by removing from the introductory text of the clause “516.203-4(b)” and adding “516.203-4(a)” in its place.
          7. Amend section 552.216-72 by—
          a. Removing from paragraph (c) “GSA’s Federal Supply Service (FSS)” and adding “General Services Administration’s Federal Acquisition Service (FAS)”, in its place; and removing from the second sentence “FSS” and adding “FAS” in its place;
          b. Removing from paragraph (a) of Alternate I “Federal Supply Service (FSS)” and adding “Federal Acquisition Service (FAS)” in its place;
          c. Removing from paragraphs (c) and (d) of Alternate I “FSS” and adding “FAS” in its place, respectively; and
          d. Removing Alternates II, III, and IV.

          552.216-73
          [Amended]
          8. Amend section 552.216-73 in paragraph (a) by removing “Federal Supply Service (FSS)” and adding “Federal Acquisition Service (FAS)” in its place.

          552.216-XX
          [Added]
          9. Add section 552.216-XX to read as follows:

          552.216-XX
          Task-Order and Delivery-Order Ombudsman.
          As prescribed in 516.506, insert the following clause:

            TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (DATE)
            The GSA Ombudsman will exercise jurisdiction on any matters pertaining to ID/IQ contracts awarded by GSA. The ombudsman will review complaints from contractors and ensure that they are afforded a fair opportunity to be considered for award, consistent with the procedures in the contract.

          (End of clause)

      [FR Doc. E8-15587 Filed 7-8-08; 8:45 am]
      BILLING CODE 6820-61-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        RIN 0648-BA55
        Fisheries Off West Coast States; West Coast Salmon Fisheries; Notice of Availability for Amendment 16 to the Salmon Fishery Management Plan

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

          ACTION:
          Availability of amendment to a fishery management plan; request for comments.

          SUMMARY:

          NMFS announces that the Pacific Fishery Management Council (Council) has submitted Amendment 16 to the Pacific Coast Salmon Fishery Management Plan (FMP) for Secretarial review. Amendment 16 would modify the FMP to implement National Standard 1 Guidelines (NS1Gs) adopted by NMFS under the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA). These guidelines are intended to prevent and end overfishing and rebuild fisheries through implementation of status determination criteria, overfishing limits, annual catch limits, and accountability measures. Amendment 16 would also set new conservation objectives and de minimis fishing rate provisions.

          DATES:
          Comments on Amendment 16 must be received on or before November 18, 2011.

          ADDRESSES:
          You may submit comments, identified by NOAA-NMFS-2011-0227, by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “Submit a Comment” icon, then enter NOAA-NMFS-2011-0227 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.
          • Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070 or to Rod McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213.
          • Fax: 206-526-6736 Attn: Peggy Busby, or 562-980-4047 Attn: Heidi Taylor.

            Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          Electronic copies of the amendment may be obtained from the Council Web site at http://pcouncil.org.

          FOR FURTHER INFORMATION CONTACT:
          Peggy Busby at 206-526-4323, or Heidi Taylor at 562-980-4039.

        SUPPLEMENTARY INFORMATION:
        The ocean salmon fisheries in the exclusive economic zone off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Fishery Management Plan (FMP). The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA) requires that each regional fishery management council submit any FMP or plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The MSRA also requires that NMFS, upon receiving an FMP or amendment, immediately publish a notice that the FMP or amendment is available for public review and comment. NMFS will consider the public comments received during the comment period described above in determining whether to approve Amendment 16 to the FMP.

        On January 16, 2009 (74 FR 3178), NMFS adopted revisions to its guidelines implementing MSRA National Standard 1 (NS1Gs) to prevent and end overfishing and rebuild fisheries. In particular, the revised guidelines provide guidance on implementation of the new statutory requirement for annual catch limits (ACLs). The revised guidelines also include new requirements for accountability measures (AMs) and other provisions regarding preventing and ending overfishing and rebuilding fisheries. To comply with the statute and these new guidelines, Amendment 16 to the Salmon FMP would reorganize and classify stocks in the FMP to conform with requirements of the NS1Gs, to establish status determination criteria, establish a framework for defining reference points related to overfishing limits (OFL), acceptable biological catch (ABC), and annual catch limits (ACLs), and establish appropriate accountability measures (AM) necessary to prevent the ACLs from being exceeded, and to mitigate any overages that may occur. Amendment 16 would also set new conservation objectives for Klamath River fall Chinook salmon and Sacramento River fall Chinook salmon, and would specify de minimis fishing rate provisions to address management in years of low abundance. Other conservation objectives would also be revised and updated as needed to conform with the best available science.
        NMFS welcomes comments on the proposed FMP amendment through the end of the comment period. A proposed rule to implement Amendment 16 has been submitted for Secretarial review and approval. NMFS expects to publish and request public review and comment on proposed regulations to implement Amendment 16 in the near future. Public comments on the proposed rule must be received by the end of the comment period on the amendment to be considered in the approval/disapproval decision on the amendment. All comments received by the end of the comment period for the amendment, whether specifically directed to the amendment or the proposed rule, will be considered in the approval/disapproval decision.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: September 14, 2011.
           Steven Thur,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2011-23988 Filed 9-16-11; 8:45 am]
      BILLING CODE 3510-22-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [FRL-6999-8]
        National Oil and Hazardous Substance Pollution Contingency Plan; National Priorities List

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Notice of intent to delete the Tomah Fairgrounds Landfill Superfund Site from the National Priorities List.

          SUMMARY:

          The Environmental Protection Agency (EPA) Region V is issuing a notice of intent to delete the Tomah Fairgrounds Landfill Superfund Site (Site) located in Tomah, Wisconsin, from the National Priorities List (NPL) and requests public comments on this notice of intent. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at Appendix B of 40 CFR Part 300 of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Wisconsin, through the Wisconsin Department of Natural Resources, have determined that all appropriate response actions under CERCLA, other than operation and maintenance and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund. In the “Rules and Regulations” Section of today's Federal Register, we are publishing a direct final notice of deletion of the Tomah Fairgrounds Landfill Superfund Site without prior notice of intent to delete because we view this as a noncontroversial revision and anticipate no adverse comment. We have explained our reasons for this deletion in the preamble to the direct final deletion. If we receive no adverse comment(s) on the direct final notice of deletion, we will not take further action on this notice of intent to delete. If we receive adverse comment(s), we will withdraw the direct final notice of deletion and it will not take effect. We will, as appropriate, address all public comments in a subsequent final deletion notice based on this notice of intent to delete. We will not institute a second comment period on this notice of intent to delete. Any parties interested in commenting must do so at this time. For additional information, see the direct final notice of deletion which is located in the Rules section of this Federal Register.

          DATES:
          Comments concerning this Site must be received by July 23, 2001.

          ADDRESSES:
          Written comments should be addressed to: Bri Bill, Community Involvement Coordinator, U.S. EPA (P-19J), 77 W. Jackson, Chicago, IL, 60604 or fax (312) 353-1155.

          FOR FURTHER INFORMATION CONTACT:
          David Linnear, Remedial Project Manager at (312) 886-6104, or Gladys Beard, State NPL Deletion Process Manager at (312) 886-7253 or 1-800-621-8431, Superfund Division, U.S. EPA (SR-6J), 77 W. Jackson, IL 60604.

        SUPPLEMENTARY INFORMATION:

        For additional information, see the Direct Final Notice of Deletion which is located in the Rules section of this Federal Register.
        Information Repositories
        Repositories have been established to provide detailed information concerning this decision at the following address: U.S. EPA Region V Library, 77 W. Jackson, Chicago, IL 60604, (312) 353-5821, Monday through Friday 8:00 a.m. to 4:00 p.m.; Tomah Public Library, 716 Superior Ave., Tomah, WI 54660 Library, (608) 374-7470, Monday through Thursday 9:00 a.m. to 8:00 p.m. and Friday and Saturday 9:00 a.m. to 5:00 p.m.; Wisconsin Department of Natural Resources, 101 S. Webster Street, Madison, Wisconsin, (608) 266-2111, Monday through Friday 7:45 a.m. to 4:30 p.m.

          List of Subjects in 40 CFR Part 300
          Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

          Authority:
          33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.

          Dated: June 12, 2001.
          David A. Ullrich,
          Acting Regional Administrator, Region V.

      [FR Doc. 01-15480 Filed 6-20-01; 8:45 am]
      BILLING CODE 6560-50-U