        GENERAL SERVICES ADMINISTRATION
        48 CFR Parts 502, 512, 513, 532, and 552
        [GSAR Case 2015-G512; Docket No. 2016-0010; Sequence No. 1]
        RIN 3090-AJ67
        General Services Administration Acquisition Regulation (GSAR); Unenforceable Commercial Supplier Agreement Terms

          AGENCY:
          Office of Acquisition Policy, General Services Administration (GSA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The General Services Administration (GSA) is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to address common Commercial Supplier Agreement terms that are inconsistent with or create ambiguity with Federal Law.

          DATES:
          Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before August 1, 2016 to be considered in the formation of the final rule.

          ADDRESSES:
          Submit comments in response to GSAR Case 2015-G512 by any of the following methods:
          • Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “GSAR Case 2015-G512”. Select the link “Comment Now” that corresponds with GSAR Case 2015-G215. Follow the instructions provided on the screen. Please include your name, company name (if any), and “GSAR Case 2015-G512” on all attached document(s).
          • Mail: General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, ATTN: Ms. Flowers, Washington, DC 20405.

            Instructions: Please submit comments only and cite GSAR Case 2015-G512, in all correspondence related to this case. All comments received will generally be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov to verify posting (except allow 30 days for posting of comments submitted by mail).

          FOR FURTHER INFORMATION CONTACT:

          For clarification about content, contact Ms. Janet Fry, General Services Acquisition Policy Division, by phone at 703-605-3167 or by email at Janet.Fry@gsa.gov. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite GSAR Case 2015-G512.

        SUPPLEMENTARY INFORMATION:

        I. Background
        A. Incompatibility of Commercial Supplier Agreements

        GSA defines Commercial Supplier Agreements as terms and conditions that are customarily offered to the public by vendors of supplies or services that meet the definition of “commercial item” and are intended to create a binding legal obligation on the end user. Commercial Supplier Agreements are particularly common in information technology acquisitions, including acquisitions of commercial computer software and commercial technical data, but they may apply to any supply or service.
        Customarily, commercial supplies and services are offered to the public under standard agreements that may take a variety of forms, including license agreements, terms of service (TOS), terms of sale or purchase, and similar agreements. These customary, standard Commercial Supplier Agreements typically contain terms and conditions that make sense when the purchaser is a private party but are inappropriate when the purchaser is the Federal Government.
        The existence of Federally-incompatible terms in standard Commercial Supplier Agreements has long been recognized in FAR 27.405-3(b), which is limited to the acquisition of commercial computer software. This clause advises contracting officers to exercise caution when accepting a contractor's terms and conditions. The use of Commercial Supplier Agreements is not limited to information technology acquisitions; Commercial Supplier Agreements have become ubiquitous in a broad variety of contexts, from travel to telecommunications to financial services to building maintenance systems, including purchases below the simplified acquisition threshold.
        Discrepancies between Commercial Supplier Agreements and Federal law or the Government's needs create recurrent points of inconsistency. Below are several examples of incompatible clauses that are commonly found in Commercial Supplier Agreements:
        • Jurisdiction or venue clauses may require that disputes be resolved in a particular state or Federal court. Such clauses conflict with the sovereign immunity of the U.S. Government and cannot apply to litigation where the U.S. Government is a defendant because those disputes must be heard either in U.S. District Court (28 U.S.C. 1346) or the U.S. Court of Federal Claims (28 U.S.C. 1491).
        • Automatic renewal clauses may automatically renew or extend contracts unless affirmative action is taken by the Government. Such clauses that require the obligation of funds prior to appropriation violate the restrictions of the Anti-Deficiency Act (31 U.S.C. 1341(a)(1)(B)).
        • Termination clauses may allow the contractor to unilaterally terminate a contract if the Government is alleged to have breached the contract. Government contracts are subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-613). The Contract Disputes Act requires a certain process for resolving disputes, including terminations, and that the “Contractor shall proceed diligently with performance of this contract, pending final resolution” under the terms of the FAR Disputes clause at 52.233-1.
        Additionally, the current order of precedence contained in the Commercial Items clause at FAR 52.212-4 is not clear on prevailing terms, and potentially allows Commercial Supplier Agreements to supersede the terms of Federal contracts, especially in those areas where Federal law is implicated indirectly. As a result, industry and Government representatives must spend significant time and resources negotiating and tailoring Commercial Supplier Agreements to comply with Federal law and to ensure both parties have agreement on the contract terms.
        B. Value of Addressing Incompatible Commercial Supplier Agreements

        GSA has identified common illegal, improper or inappropriate Commercial Supplier Agreement terms that constitute the majority of the negotiated Commercial Supplier Agreement terms. The outcome of the negotiations regarding these identified terms is generally predetermined by rule of law, but GSA and contractors must spend significant time and resources to negotiate out these terms. By explicitly addressing common unenforceable terms within the Commercial Items clause at FAR 52.212-4 and clarifying prevailing terms in the order of precedence, it eliminates the need for negotiation on these identified terms, and makes clear to both parities the precedence of terms.
        This approach will decrease the time needed for legal review prior to contract formation and will significantly reduce costs to both the Government and contractors. GSA believes that such an approach will benefit contractors, including small business concerns by (1) decreasing proposal costs associated with negotiating the identified unenforceable Commercial Supplier Agreement terms; (2) facilitating faster procurement and contract lead times, therefore decreasing the time it takes for contractors to make a return on their investment; (3) reducing administrative costs for companies that maintain alternate Federally compliant Commercial Supplier Agreements; and (4) for small business concerns it levels the playing field with larger competitors since negotiations will only be required if the Commercial Supplier Agreements contains objectionable clauses outside of those already identified in proposed clause. Additionally, this approach ensures consistent application and understanding of these unenforceable terms.
        C. GSA Class Deviation

        On July 31, 2015, GSA issued a class deviation to immediately address the order of precedence and Commercial Supplier Agreement terms that are incompatible with Federal law. The class deviation protects GSA and contractors by uniformly addressing common unacceptable terms, immediately reducing risk, reducing administrative cost and further streamlining the acquisition process for commercial-item supplies and services. Additionally the class deviation clarifies the precedence of terms to ensure both parties have a mutual understanding of the contract terms. For example, bilateral modifications to the commercial supplier agreements are only required for material changes to ensure the contracting officer is aware of and agrees to the changes.

        A supplement to the class deviation was issued on September 30, 2015, to (1) reiterate that the change in the order of precedence protects GSA in the occasion where unilateral license updates could change government rights, and (2) clarify that Commercial Supplier Agreement terms can be negotiated except for the improper terms addressed in paragraph (w) of the GSAR clause 552.212-4. GSA refined the language in the class deviation while developing this proposed rule to further clarify (1) unauthorized obligations and other fees; (2) unilateral termination provisions; and (3) terms incorporated by reference. These issues are discussed in greater detail in Section II of this rule.

        II. Discussion and Analysis
        GSA is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to implement standard terms and conditions for the most common conflicting Commercial Supplier Agreement terms to minimize the need for the negotiation of the terms of Commercial Supplier Agreements on an individual basis. The proposed rule will add provisions to contracts making certain conflicting or inconsistent terms in a Commercial Supplier Agreement unenforceable, so long as an express exception is not authorized elsewhere by Federal statute. GSA is also proposing to amend the GSAR to modify the order of precedence contained in the Commercial Items clause (52.212-4) to make clear that all of the terms of the GSAR clause control in the event of a conflict with a Commercial Supplier Agreement unless both parties agree to specific terms during the course of negotiating the contract.
        Both of the above changes will be accomplished by revising guidance and clauses contained throughout the GSAR. The specific changes contained in the proposed rule are as follows:
        • A definition for Commercial Supplier Agreements is added at GSAR 502.101.
        • GSAR 512.216 is created and clarifies that paragraph (u) of the Commercial Items clause at 552.212-4 prevents violation of the Anti-Deficiency Act.
        • GSAR 512.301 is updated to prescribe the use of the deviated Commercial Items clause at 552.212-4 in lieu of FAR 52.212-4.
        • GSAR 513.202 is created and will automatically apply the clause at 552.232-39 into all purchases below the micro-purchase threshold.
        • GSAR 513.302-5 is created and requires the inclusion of GSAR 552.232-39 and 552.232-78 in all acquisitions for supplies or services that are offered under a Commercial Supplier Agreement.
        • GSAR 532.705 is created and clarifies the definition of supplier license agreements as used in the Unenforceability of Unauthorized Obligations clause at FAR 32.705.
        • GSAR 532.706-3 is created and directs contracting officers to utilize the clause at GSAR 552.232-39 in lieu of FAR 52.232-39 and prescribes the use of the clause Commercial Supplier Agreements—Unenforceable Clauses at 552.232-78.
        • The Commercial Items clause at GSAR 552.212-4 is modified to include instructions to contracting officers on how to incorporate the change in language from FAR 52.212-4.
        • The order of precedence contained in paragraph (s) of the Commercial Items clause at GSAR 552.212-4 is amended to ensure that all of the terms of GSAR 552.212-4 shall control over the terms of a Commercial Supplier Agreement by moving “Addenda to this solicitation or contract, including any license agreements for computer software” down two spaces in the order of precedence, behind “Solicitation provisions as awarded if there is a solicitation” and “Other paragraphs of this clause.”
        • Paragraph (u) of the Commercial Items clause at GSAR 552.212-4 is amended to (1) reflect the new Commercial Supplier Agreement definition contained in GSAR 502.101, (2) to expand coverage to “language or provision” in addition to “clause” in order to ensure that all Commercial Supplier Agreement terms are covered, regardless of terminology utilized, and (3) to include future fees, penalties, interest and legal costs as unauthorized obligations in addition to indemnification.
        • Paragraph (w) of the Commercial Items clause at GSAR 552.212-4 is created to address the following commonplace unenforceable elements found in Commercial Supplier Agreements:
        ○ Definition of contracting parties: Contract agreements are between the commercial supplier or licensor and the U.S. Government. Government employees or persons acting on behalf of the Government will not be bound in their personal capacity by the Commercial Supplier Agreement.
        ○ Laws and disputes: Clauses that conflict with the sovereign immunity of the U.S. Government cannot apply to litigation where the U.S. Government is a defendant because those disputes must be heard either in U.S. District Court or the U.S. Court of Federal Claims. Commercial Supplier Agreement terms that require the resolution of a dispute in a forum or time period other than that expressly authorized by Federal law are deleted. Statutes of limitation on potential claims shall be governed by U.S. Government law.
        ○ Continued Performance: Commercial suppliers may not unilaterally terminate or suspend a contract based upon a suspected breach of contract by the Government. Accepting terms that can be unilaterally terminated or revoked places the Government at risk of not receiving goods or services for money it has obligated on a contract or task order, if the price paid by the Government is non-refundable. This position is in violation of 31 U.S.C. 3324, which provides that payment under a contract may not exceed the value of a service or product already delivered. A license that is prematurely terminated outside of the regular dispute resolution procedures results in the Government not receiving the value of that license because the license is no longer delivered. The removal of the contractor's right to unilateral termination does not impair the contractor's ability to pursue remedies. It preserves all the legal remedies the contractor otherwise has under Federal law, including Contract Disputes Act claims. Remedies through the Contract Disputes Act or other applicable Federal statutes align with the continuing performance requirement set forth in subparagraph (d) Disputes.

        ○ Arbitration; equitable or injunctive relief: A binding arbitration may not be enforced unless explicitly authorized by agency guidance or statute. Equitable remedies or injunctive relief such as attorney fees, cost or interest may only be awarded against the U.S. Government when expressly authorized by statute (e.g., Prompt Payment Act).
        ○ Additional Terms: Incorporation of terms by reference is allowed provided the full text of terms is provided with the offer. Unilateral modifications to the Commercial Supplier Agreement after the time of award may be allowed to the extent that the modified terms do not materially change the Government's rights or obligations, increase the Government's prices, decrease the level of service provided, or limit any Government right addressed elsewhere in the contract. A bilateral contract modification is required in order for any of the above described changes to be enforceable against the Government.
        ○ Automatic renewals: Due to Anti-Deficiency Act restrictions, automatic contract renewal clauses are impermissible. Any such Commercial Supplier Agreement clauses are unenforceable.
        ○ Indemnity (contractor assumes control of proceedings): Any clause requiring that the commercial supplier or licensor control any litigation arising from the Government's use of the contractor's supplies or services is deleted. Such representation when the Government is a party is reserved by statute for the U.S. Department of Justice.

        ○ Audits (automatic liability for payment): Discrepancies found during an audit must comply with the invoicing procedures from the underlying contract. Disputed charges must be resolved through the Disputes clause. Any audits requested by the commercial supplier or licensor will be performed at supplier or licensor's expense.
        ○ Taxes or surcharges: Any taxes or surcharges that will be passed along to the Government will be governed by the terms of the underlying contract. The cognizant contracting officer must make a determination of applicability of taxes whenever such a request is made.
        ○ Assignment of Commercial Supplier Agreement or Government contract by supplier: The contract, Commercial Supplier Agreement, party rights and party obligations may not be assigned or delegated without express Government approval. Payment to a third party financial institution may still be reassigned.
        ○ Confidentiality of Commercial Supplier Agreement terms and conditions: The content of the Commercial Supplier Agreement and the Federal Supply Schedule list price (if applicable) may not be deemed confidential. The Government may retain other marked confidential information as required by law, regulation or agency guidance, but will appropriately guard such confidential information.
        • GSAR 552.232-78 is created and addresses the same common unenforceable Commercial Supplier Agreement terms addressed in GSAR 552.212-4(w) described above.
        • GSAR 552.232-39 is created to amended the language of FAR 52.232-39 to reflect the definition of Commercial Supplier Agreements contained at GSAR 502.101, to expand coverage to “language or provision” in addition to “clause” in order to ensure that all Commercial Supplier Agreement terms are covered, regardless of terminology utilized, and to include future fees, penalties, interest and legal costs as unauthorized obligations in addition to indemnification.
        This proposed rule will reduce risk by uniformly addressing common unacceptable Commercial Supplier Agreement terms, facilitate efficiency and effectiveness in the contracting process by reducing the administrative burden for the Government and industry, and promote competition by reducing barriers to industry, particularly for small businesses.
        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

        The change may 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. The analysis is summarized as follows:

          This effort is expected to reduce the overall burden on small entities by reducing the amount of time and resources required to negotiate Commercial Supplier Agreements. GSA believes that such an approach will disproportionately benefit small business concerns since they are less likely to retain in-house counsel and the GSAR revision will reduce or eliminate the costs associated with the negotiation of the identified unenforceable elements. Furthermore, this approach will allow small businesses that do not have Commercial Supplier Agreements tailored to Federal Government procurements to potentially utilize their otherwise compliant, standard Commercial Supplier Agreements when conducting business with the Government.

        The Regulatory Secretariat Division will be submitting a copy of the Initial Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. GSA invites comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.
        GSA 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 (GSAR Case 2015-G512) in correspondence.
        V. Paperwork Reduction Act
        The proposed 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 502, 512, 513, 532, and 552
          Government procurement.

          Dated: May 20, 2016.
          Jeffrey A. Koses,
          Senior Procurement Executive, Office of Acquisition Policy, Office of Government-wide Policy, General Services Administration.

        Therefore, GSA proposes to amend 48 CFR parts 502, 512, 513, 532, and 552 as set forth below:
        1. Add part 502 to read as follows:

          PART 502—DEFINITIONS OF WORDS AND TERMS

              Subpart 502.1—Definitions
              502.101
               Definitions.

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

            Subpart 502.1—Definitions

              502.101
               Definitions.

                Commercial supplier agreements means terms and conditions customarily offered to the public by vendors of supplies or services that meet the definition of “commercial item” set forth in FAR 2.101 and intended to create a binding legal obligation on the end user. Commercial supplier agreements are particularly common in information technology acquisitions, including acquisitions of commercial computer software and commercial technical data, but they may apply to any supply or service. The term applies—
              (1) Regardless of the format or style of the document. For example, a commercial supplier agreement may be styled as standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order;
              (2) Regardless of the media or delivery mechanism used. For example, a commercial supplier agreement may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery, registration for a service, or another transaction.

          PART 512—ACQUISITION OF COMMERCIAL ITEMS

        2. The authority citation for part 512 is revised to read as follows:

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

        3. Add subpart 512.2, consisting of 512.216, to read as follows:

          Subpart 512.2—Special Requirements for the Acquisition of Commercial Items

            512.216
             Unenforceability of unauthorized obligations.
            GSA has a deviation to FAR 12.216 for this section to read as follows:
            For commercial contracts, supplier license agreements are referred to as commercial supplier agreements (defined in 502.101). Paragraph (u) of clause 552.212-4 prevents violations of the Anti-Deficiency Act (31 U.S.C. 1341) for supplies or services acquired subject to a commercial supplier agreement.

        4. Amend section 512.301 by adding paragraph (e) to read as follows:

          512.301
           Solicitation provisions and contract clauses for the acquisition of commercial items.

          (e) GSA has a deviation to revise certain paragraphs of FAR clause 52.212-4. Use clause 552.212-4 Contract Terms and Conditions—Commercial Items (FAR DEVIATION), for acquisitions of commercial items in lieu of FAR 52.212-4. The contracting officer may tailor this clause in accordance with FAR 12.302 and GSAM 512.302.

        5. Add part 513 to read as follows:

          PART 513—SIMPLIFIED ACQUISITION PROCEDURES

              Subpart 513.2—Actions At or Below the Micro-Purchase Threshold
              513.202
               Unenforceability of unauthorized obligations in micro-purchases.

            Subpart 513.3—Simplified Acquisition Methods

              513.302-5
               Clauses.

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

            Subpart 513.2—Actions At or Below the Micro-Purchase Threshold

              513.202
               Unenforceability of unauthorized obligations in micro-purchases.
              Clause 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION), will automatically apply to any micro-purchase in lieu of FAR 52.232-39 for supplies and services acquired subject to a commercial supplier agreement (as defined in 502.101).

            Subpart 513.3—Simplified Acquisition Methods

              513.302-5
               Clauses.
              Where the supplies or services are offered under a commercial supplier agreement (as defined in 502.101), the purchase order or modification shall incorporate clause 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION), in lieu of FAR 52.232-39, and clause 552.232-78, Commercial Supplier Agreements-Unenforceable Clauses.

          PART 532—CONTRACT FINANCING

        6. The authority citation for 48 CFR part 532 continues to read as follows:

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

        7. Add subpart 532.7, consisting of 532.705 and 532.706-3, to read as follows:

          Subpart 532.7—Contract Funding

            532.705
             Unenforceability of unauthorized obligations.
            Supplier license agreements defined in FAR 32.705 are equivalent to commercial supplier agreements defined in 502.101.

            532.706-3
             Clause for unenforceability of unauthorized obligations.
            (a) The contracting officer shall utilize the clause at 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION) in all solicitations and contracts in lieu of FAR 52.232-39.
            (b) The contracting officer shall utilize the clause at 552.232-78, Commercial Supplier Agreements—Unenforceable Clauses, in all solicitations and contracts (including orders) when not using FAR part 12.

          PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        8. The authority citation for 48 CFR part 552 continues to read as follows:

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

        9. Revise section 552.212-4 to read as follows.

          552.212-4
           Contract Terms and Conditions—Commercial Items (FAR DEVIATION).
          As prescribed in 512.301(e), replace paragraphs (g)(2), (s), and (u) of FAR clause 52.212-4. Also, add paragraph (w) to FAR clause 52.212-4.

            Contract Terms and Conditions—Commercial Items (FAR DEVIATION) (Date)
            (g)(2) The due date for making invoice payments by the designated payment office is the later of the following two events:
            (i) The 10th day after the designated billing office receives a proper invoice from the Contractor. If the designated billing office fails to annotate the invoice with the date of receipt at the time of receipt, the invoice payment due date shall be the 10th day after the date of the Contractor's invoice; provided the Contractor submitted a proper invoice and no disagreement exists over quantity, quality, or Contractor compliance with contract requirements.
            (ii) The 10th day after Government acceptance of supplies delivered or services performed by the Contractor.
            (s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:
            (1) The schedule of supplies/services.
            (2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements-Unenforceable Clauses paragraphs of this clause.
            (3) The clause at 52.212-5.
            (4) Solicitation provisions if this is a solicitation.
            (5) Other paragraphs of this clause.
            (6) Addenda to this solicitation or contract, including any license agreements for computer software.
            (7) The Standard Form 1449.
            (8) Other documents, exhibits, and attachments.
            (9) The specification.
            (u) Unauthorized Obligations. (1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:
            (i) Any such language, provision, or clause is unenforceable against the Government.

            (ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.
            (iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.
            (2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.
            (w) Commercial supplier agreements—unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

            (1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

            (i) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license (including all contracts, task orders, and delivery orders under FAR Part 12).
            (ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.
            (iii) Law and disputes. This agreement is governed by Federal law.
            (A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.
            (B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.
            (C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.
            (iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in paragraph (d) (Disputes).
            (v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).
            (vi) Additional terms. (A) This commercial supplier agreement may incorporate additional terms by reference, provided that the full text of the terms are provided with the offer.
            (B) After award, the contractor may unilaterally revise terms provided:
            (1) Terms do not materially change government rights or obligations;
            (2) Terms do not increase government prices;
            (3) Terms do not decrease overall level of service; and
            (4) Terms do not limit any other Government right addressed elsewhere in this contract.
            (C) The order of precedence clause of this contract is not enforceable against the government, notwithstanding any software license terms unilaterally revised subsequent to award that is inconsistent with any material term or provision of this contract.
            (vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express Government approval.
            (viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.
            (ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:
            (A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.
            (B) This charge, if disputed by the ordering activity, will be resolved through the Disputes clause at 522.212-4(d); no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.
            (C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.
            (x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.
            (xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under subparagraph (b) of this clause at 552.212-4.
            (xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the Federal Supply Schedule price list shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.
            (2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevail to the extent of such inconsistency.

          (End of clause)

        10. Add section 552.232-39 to read as follows:

          552.232-39
           Unenforceability of Unauthorized Obligations (FAR DEVIATION).
          As prescribed in 513.302-5 and 532.706-3, insert the following clause:

            Unenforceability of Unauthorized Obligations (FAR DEVIATION) (Date)
            (a) Except as stated in paragraph (b) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:
            (1) Any such language, provision, or clause is unenforceable against the Government.

            (2) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such language, provision, or clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.
            (3) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.
            (b) Paragraph (a) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

          (End of clause)

        11. Add section 552.232-78 to read as follows:

          552.232-78
          Commercial Supplier Agreements—Unenforceable Clauses.
          As prescribed in 513.302-5 and 532.706-3 insert the following clause:

            Commercial Supplier Agreements—Unenforceable Clauses (Date)
            (a) When any supply or service acquired under this contract is subject to a commercial supplier agreement, the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:
            (1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:
            (i) Applicability. This agreement is part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license (including all contracts, task orders, and delivery orders under FAR Parts 13, 14 or 15).
            (ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.
            (iii) Law and disputes. This agreement is governed by Federal law.
            (A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.
            (B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.
            (C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.
            (iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in subparagraph (d) (Disputes).
            (v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).
            (vi) Additional terms. (A) This commercial supplier agreement may incorporate additional terms by reference, provided that the full text of the terms are provided with the offer.
            (B) After award the contractor may unilaterally revise terms provided:
            (1) Terms do not materially change government rights or obligations; and
            (2) Terms do not increase government prices; and
            (3) Terms do not decrease overall level of service; and
            (4) Terms do not limit any other Government right addressed elsewhere in this contract.
            (C) The order of precedence clause of this contract notwithstanding, any software license terms unilaterally revised subsequent to award that is inconsistent with any material term or provision of this contract is not enforceable against the government.
            (vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express Government approval.
            (viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.
            (ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:
            (A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.
            (B) This charge, if disputed by the ordering activity, will be resolved through the Disputes clause at 52.233-1; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.
            (C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.
            (x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.
            (xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under the clause at 52.232-23, Assignment of Claims.
            (xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the Federal Supply Schedule price list shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.
            (2) If any language, provision or clause of this agreement conflicts or is inconsistent with the preceding subparagraph (a)(1), the language, provisions, or clause of subparagraph (a)(1) shall prevail to the extent of such inconsistency.

          (End of clause)

      [FR Doc. 2016-12448 Filed 5-27-16; 8:45 am]
       BILLING CODE 6820-61-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 00-2832; MM Docket No. 00-250; RM-10025]
        Radio Broadcasting Services; Alexandria and Sauk Centre, Minnesota

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Commission, at the request of Main Street Broadcasting, Inc., licensee of Station KMSR(FM), Sauk Centre, Minnesota, and BDI Broadcasting, Inc., licensee of Station KIKV-FM, Alexandria, Minnesota, proposes the substitution of Channel 232C3 for 232A at Sauk Centre, the reallotment of Channel 232C3 from Sauk Centre to Alexandria, and the modification of Station KMSR's license accordingly; and the reallotment of Channel 264C1 from Alexandria to Sauk Centre, and the modification of Station KIKV's license accordingly. Channel 232C3 can be allotted at Alexandria, Minnesota, in compliance with the Commission's minimum distance separation requirements, with respect to domestic allotments, at petitioner's requested site 8.8 kilometers (5.5 miles) northwest of the community at coordinates 45-55-57 and 95-28-21. Additionally, Channel 264C1 can be reallotted from Alexandria to Sauk Centre in compliance with the Commission's minimum distance separation requirements, with respect to domestic allotments, at a site 15.6 kilometers (9.7 miles) west of the community at coordinates 45-41-03 and 95-08-14.

          DATES:
          Comments must be filed on or before February 5, 2001, and reply comments must be filed by February 20, 2001.

          ADDRESSES:
          Federal Communications Commission, Washington, DC 20554.
          In addition to filing comments with the FCC, interested parties should serve the petitioner's counsel, as follows: John Wells King, Esq., Garvey, Schubert and Barer 1000 Potomac Street, NW., Fifth Floor, Washington, DC 20007.

          FOR FURTHER INFORMATION CONTACT:
          Victoria M. McCauley, Mass Media Bureau, (202) 418-2180.

        SUPPLEMENTARY INFORMATION:
        This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No., adopted December 6, 2000, and released December 15, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.
        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.

          List of Subjects in 47 CFR Part 73
          Radio broadcasting.

        Part 73 of title 47 of the Code of Federal Regulations is proposed to be amended 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 and 336.

            § 73.202
            [Amended]
            2. Section 73.202(b) the FM Table of Allotments under Minnesota is amended by removing Channel 232A and adding Channel 264C1 at Sauk Centre, and by removing Channel 264C1 and adding Channel 232C3 at Alexandria in numercial order.

            Federal Communications Commission.
            John A. Karousos,
            Chief, Allocations Branch, Policy and Rules Division, Mass Media Bureau.

      [FR Doc. 00-32791 Filed 12-26-00; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AI82
        Endangered and Threatened Wildlife and Plants; Endangered Status for Scimitar-Horned Oryx, Addax, and Dama Gazelle

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the re-opening of the comment period on the proposed listing of three species of antelope: scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama), as endangered under the Endangered Species Act (ESA) of 1973, as amended. We are re-opening the comment period to request additional information and comments from the public regarding the proposed rule. The original proposed rule was published on November 5, 1991 (56 FR 56491). Comments previously submitted need not be resubmitted because they will be incorporated into the public record as part of this comment period and will be fully considered in the final determination.

          DATES:
          We will accept public comments until October 22, 2003.

          ADDRESSES:

          Submit any comments, information, and questions by mail to the Chief, Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 750, Arlington, VA 22203; or by fax to 703-358-2276; or by e-mail to ScientificAuthority@fws.gov. Comments and supporting information will be available for public inspection, by appointment, from 8 a.m. to 4 p.m. at the above address. You may also obtain copies of the November 5, 1991, proposed rule from the above address.

          FOR FURTHER INFORMATION CONTACT:

          Eleanora Babij at the above address, or by phone, 703-358-1708; fax, 703-358-2276; or e-mail, ScientificAuthority@fws.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        The scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama) originally occupied the same general region of North Africa. The reasons for the decline of all three antelope species are similar. Desertification, coupled with severe droughts, has dramatically reduced available habitat. The growth of permanent farming has brought additional pressures, such as human habitat disturbance and competition from domestic livestock, which have restricted these antelopes to marginal habitat. Additional pressures from the civil wars in Chad and the Sudan have resulted in increased military activity, construction, and uncontrolled hunting.
        The range of the scimitar-horned oryx in North Africa once covered semi-deserts and steppes north of the Sahara, from Morocco to Egypt. Over-hunting and habitat loss have been the main reasons for the decline of the wild population of this antelope according to the World Conservation Union (IUCN 2002). Competition with domestic livestock has also contributed to the species' decline. During the 1970s and 1980s, the scimitar-horned oryx was first classified as vulnerable and then as endangered by the IUCN. In 1975, the scimitar-horned oryx was listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
        The addax once occurred throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile River. Motorized illegal hunting following World War II has been noted as the primary reason for decline of the addax (Antelope Taxon Advisory Group 2002), and hunting continues to threaten this species (IUCN 2002). Habitat degradation as a result of overgrazing by domestic livestock has also played an important role in the decline of the addax. Similar to the scimitar-horned oryx, during the 1970s and 1980s, the addax was first classified as vulnerable and then as endangered by the IUCN. In 1975, the addax was also listed in Appendix II of CITES.

        The dama gazelle, the largest of the gazelles, was once common and widespread in arid and semi-arid regions of the Sahara. It has suffered greatly from uncontrolled hunting and overgrazing by domestic livestock (Mallon and Kingwood 2001). Habitat destruction and hunting are still the most serious threats facing dama gazelles today (Antelope Taxon Advisory Group 2002; IUCN 2002). Two subspecies of the dama gazelle, Gazella dama lozanoi and Gazella dama mhorr, were designated as endangered, and then the entire species of G. dama was designated by the IUCN as vulnerable and then endangered. In 1983, these two subspecies and G. dama were listed in CITES Appendix I. Two subspecies of dama gazelle, G. d. lozanoi and G. d. mhorr, have been listed as endangered under the ESA since 1970. A third subspecies, G. d. ruficollis was not included in this original listing. However, there is currently a taxonomic debate over the validity of G. d. lozanoi as a subspecies.
        Of the three antelope species, the scimitar-horned oryx was the most susceptible to the threats it faced. By the mid-1980s, it was estimated that only a few hundred were left in the wild, with the only viable populations known to be in Chad. There have been no reported sightings of this species in the wild since the late 1980s, and the 2002 Red List status of the scimitar-horned oryx is “extinct in the wild” (IUCN 2002). However, this antelope has been reintroduced into Tunisia, and once the reintroduced population breeds, especially to the second generation, it is anticipated that the status of “extinct in the wild” will change.

        The addax is better able to utilize waterless areas in the heart of the Sahara Desert and is less susceptible to human disturbance and livestock competition. It is believed that the addax was extirpated from Tunisia during the 1930s, and the last animals were killed in Libya and Algeria in 1966 and 1970, respectively. Remnant populations may still exist in the remote desert areas of Chad, Niger, and Mali, and occasionally move north into Libya and Algeria during times of good rainfall. In the Antelope Specialist Group's Global Survey of Antelopes, the addax is considered to be “regionally extinct” (Mallon and Kingwood 2001). Addax are listed as critically endangered in the 2002 Red List and probably number fewer than 250 in the wild.

        The dama gazelle is able to utilize both semi-desert and desert habitats, and is smaller than either the oryx or addax. Although the dama gazelle is the least susceptible of these three antelopes to pressures from humans and domestic livestock, it is estimated that only small numbers survive in most of the eight countries within its historical range. It was previously extinct in Senegal, but has since been reintroduced, and in 1997, at least 25 animals existed there as part of a semi-captive breeding program (IUCN 2002). The IUCN lists all forms of dama gazelles as endangered. The dama gazelle has declined rapidly over the last 20 years, and recent estimates show numbers fewer than 2,500 and declining (Mallon and Kingwood 2001). G. d. mhorr may be extinct in the wild and only found in captive collections or reintroduced populations (Antelope Taxon Advisory Group 2002; IUCN 2002).
        Public Comments Solicited
        We will accept written comments and information during this re-opened comment period from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party. Comments particularly are sought concerning;
        (1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to the scimitar-horned oryx, addax, and dama gazelle;
        (2) Additional information concerning the range, distribution, and population size of the scimitar-horned oryx, addax, and dama gazelle;
        (3) Current planned activities in the species' range and their possible impacts on the scimitar-horned oryx, addax, and dama gazelle;
        (4) Information on the validity of G. d. lozanoi as a subspecies;
        (5) Alternatives to the treatment of captive populations of scimitar-horned oryx, addax, and dama gazelle; and
        (6) Information on the genetic integrity of captive populations of scimitar-horned oryx, addax, and dama gazelle, and particularly whether any captive populations are likely to have been hybridized.

        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Any person commenting may request that we withhold their home address, which we will honor to the extent allowable by law. In some circumstances, we may also withhold a commenter's identity, as allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, from 8 a.m. to 4 p.m. at the Division of Scientific Authority (see
          ADDRESSES section).
        References Cited

          Antelope Taxon Advisory Group. 2002. Addax Fact Sheet. American Zoo and Aquarium Association. Downloaded from http://www.csew.com/antelopetag.

          Antelope Taxon Advisory Group. 2002. Addra or Dama Gazelle Fact Sheet. American Zoo and Aquarium Association. Downloaded from http://www.csew.com/antelopetag.

          Antelope Taxon Advisory Group. 2002. Scimitar-Horned Oryx Fact Sheet. American Zoo and Aquarium Association. Downloaded from http://www.csew.com/antelopetag.

          International Union for Conservation of Nature and Natural Resources. 2002. 2002 IUCN Red List of Threatened Species. Downloaded from http://www.iucn.org.
          Mallon, D.P., and S.C. Kingwood (Compilers). 2001. Antelopes. Part 4: North Africa, the Middle East, and Asia. Global Survey and Regional Action Plans. SSC Antelope Specialist Group. IUCN, Gland, Switzerland and Cambridge, UK. Viii + 260 pp.
          Metzler, S. 2000. Addra Gazelle North American Regional Studbook 1999 Update. Disney's Animal Kingdom.

        Author

        The primary author of this notice is Eleanora Babij, Division of Scientific Authority, U.S. Fish and Wildlife Service (see
          ADDRESSES section).

          Authority:
          16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

          Dated: July 16, 2003.
          Matt Hogan,
          Acting Director, Fish and Wildlife Service.

      [FR Doc. 03-18841 Filed 7-23-03; 8:45 am]
      BILLING CODE 4310-55-P


        FEDERAL EMERGENCY MANAGEMENT AGENCY
        44 CFR Part 67
        [Docket No. FEMA-P-7617]
        Proposed Flood Elevation Determinations

          AGENCY:
          Federal Emergency Management Agency (FEMA).

          ACTION:
          Proposed rule.

          SUMMARY:
          Technical information or comments are requested on the proposed Base (1% annual-chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).

          DATES:
          The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.

          ADDRESSES:
          The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.

          FOR FURTHER INFORMATION CONTACT:

          Michael M. Grimm, Acting Chief, Hazards Study Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street, SW., Washington, DC 20472, (202) 646-2878 or (e-mail) michael.grimm@fema.gov.

        SUPPLEMENTARY INFORMATION:
        FEMA proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

        These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.
        National Environmental Policy Act
        This proposed rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.
        Regulatory Flexibility Act
        The Administrator for Federal Insurance and Mitigation Administration certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.
        Regulatory Classification
        This proposed rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
        Executive Order 12612, Federalism
        This proposed rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.
        Executive Order 12778, Civil Justice Reform
        This proposed rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

          List of Subjects in 44 CFR Part 67
          Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.

        Accordingly, 44 CFR part 67 is proposed to be amended as follows:

          PART 67—[AMENDED]
          1. The authority citation for part 67 continues to read as follows:

            Authority:
            42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

            § 67.4
            [Amended]
            2. The tables published under the authority of § 67.4 are proposed to be amended as follows:

                Source of flooding and location of referenced elevation
                *Elevation in feet (NGVD)
                Existing
                Modified
                Communities affected

                Scioto River:

                Approximately 260 feet upstream of Trabue Road
                *744
                *743
                (1)

                Approximately 870 feet downstream of Frank Road/Highway 104
                *713
                *714

                Barnes Ditch:

                At the confluence of Scioto River and Barnes Ditch
                *737
                735

                Approximately 800 feet upstream of McKinley Avenue
                *737
                *736

                Dry Run:

                At confluence of Scioto River and Dry Run
                *731
                *729

                Just downstream of culvert at Conrail crossing
                *731
                *729

                  Franklin County

                Maps are available for inspection at 280 East Broad Street, 2nd Floor, Columbus, Ohio 43215.

                Send comments to Mr. Dewey R. Stokes, President, Franklin County Board of Commissioners, 373 High Street, 26th Floor, Columbus, Ohio 43215.

                  City of Columbus

                Send comments to the Honorable Michael B. Coleman, Mayor, City of Columbus, 90 West Broad Street, Room 247, Columbus, Ohio 43215-9015.

                  Village of Marble Cliffs

                Send comments to The Honorable Frank G. Monaco, Mayor, Village of Marble Cliff, 1600 Fernwood Avenue, Columbus, Ohio 43212.

                  City of Upper Arlington

                Maps are available for inspection at 3600 Tremont Road, Upper Arlington, Ohio 43221.

                Send comments to Mr. Richard King, City Manager, City of Upper Arlington, 3600 Tremont Road, Upper Arlington, Ohio 43221.

                  City of Grandview Heights

                Send comments to The Honorable N. Colleen Sexton, Mayor, City of Grandview Heights, 1016 Grandview Avenue, Grandview Heights, Ohio 43212.

              * National Geodetic Vertical Datum.

                1 Franklin County, OH (Unincorporated Areas), City of Columbus, OH, Village of Marble Cliff, OH, City of Upper Arlington, OH, City of Grandview Heights, OH, City of Columbus, OH.

            (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”)

            Dated: November 13, 2002.
            Anthony S. Lowe,
            Administrator, Federal Insurance and Mitigation Administration.

      [FR Doc. 02-29961 Filed 11-25-02; 8:45 am]
      BILLING CODE 6718-04-P