        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. 2007-27027]
        Conaway Hip-Hugger; Denial of Petition for Rulemaking

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

          ACTION:
          Denial of petition for rulemaking.

          SUMMARY:
          This notice denies a petition for rulemaking submitted by Mr. Brian J. Conaway, which, among other things, requested that the NHTSA amend the language and definitions in Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child restraint systems,” to apply the standard to products that are not yet defined by the standard, such as belt positioning devices. Alternatively, the petitioner asked the agency to adopt a new definition, which would allow his product, the Hip-Hugger, to be recognized and defined as a child restraint device under FMVSS No. 213. NHTSA is denying the petition because it does not see a safety need to apply a FMVSS to seat belt positioners and it does not believe that a denial would hamper child restraint system innovation or design. Furthermore, the agency is concerned that applying FMVSS No. 213 to seat belt positioners may actually degrade child occupant protection by promoting premature graduation to lap/shoulder belts.

          FOR FURTHER INFORMATION CONTACT:

            For technical issues: Mr. Sean Doyle, NHTSA Office of Crashworthiness Standards. Telephone: (202) 366-1740. Facsimile: (202) 493-2990.

            For legal issues: Ms. Deirdre Fujita, NHTSA Office of the Chief Counsel. Telephone: (202) 366-2992. Facsimile: (202) 366-3820.
          Both officials can be reached by mail at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:
        I. Background
        A. FMVSS No. 213
        Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child restraint systems,” has been in effect since January 1, 1970. It was established to “minimize the likelihood of death and injury to children in vehicle crashes or sudden stops. * * *” 1
           In 1979, the standard was upgraded to include certain dynamic performance requirements.2
           The standard applies to “child restraint systems” and stipulates several definitional requirements for the various child restraint systems used in motor vehicles. A “child restraint system” is defined in FMVSS No. 213 to be “any device except Type I or Type II seat belts, designed for use in a motor vehicle or aircraft to restrain, seat, or position children. * * *” 3
           Belt-positioning seats, built-in child restraint systems, backless child restraint systems, and car beds are among several of the applicable, defined “child restraint systems” covered by FMVSS No. 213. Seat belt positioning devices are not included in the definition of “child restraint system” in FMVSS No. 213, and are therefore not regulated by this standard.

            1 34 FR 1172, January 24, 1969. Originally the standard was called “Child Seating Systems” and applied to motor vehicle equipment for seating and restraining a child being transported in a passenger car.

            2 44 FR 72131, December 13, 1979.

            3 Standard No. 209 defines a Type I seat belt as “a lap belt for pelvic restraint,” and a Type II seat belt as “a combination of pelvic and upper torso restraints.”

        B. The Petition

        In a letter dated March 5, 2007, Mr. Brian Conaway petitioned the NHTSA to amend the language and definitional requirements of FMVSS No. 213 to permit what he said were advancements in child restraint design and to encourage new approaches to child protection. The petitioner believed that the effectiveness of the regulation is restricted by narrow definitions. The petitioner contended that there are many innovative child safety vehicle devices “which do not ‘* * * restrain, seat, or position children * * *' in a manner consistent with any of the current definitions,” yet these devices are fully capable of complying with Standard 213's dynamic performance requirements. The petitioner further alleged that the “process of system ‘definitions' * * * limits innovation and advancements in child restraint design to those approaches which already exist and fit a product type already defined in the standard.” Mr. Conaway went on to say, “this results in designing to a standard instead of designing to optimize a child's comfort and safety in the event of a crash.” In particular, Mr. Conaway explained that the device which he developed, the Hip-Hugger, or Conaway devise, is excluded from FMVSS No. 213, “not based on the crash data or protection it provides, but based on its inability to meet the definition of any of the recognized alternative and already existing approaches to child protection.” The petitioner further noted, “this is in spite of the fact that it outperforms booster seats when crash tested under FMVSS-213 dynamic test standards.” As a result, Mr. Conaway specifically requested that FMVSS No. 213 be “changed to allow for products not yet defined to be included as long as they meet the appropriate age, weight, and height related performance and labeling standards.” Alternatively, Mr. Conaway petitioned the agency to adopt a new definition into FMVSS No. 213 that would permit his device to be recognized as a child restraint system.
        Mr. Conaway's Hip Hugger device is a type of seat belt positioning device. Mr. Conaway first wrote to NHTSA about the Hip Hugger in 2001, asking whether it was a “child restraint system” under FMVSS No. 213. The following is a description of the device, taken from the agency's June 1, 2001, letter written in response to Mr. Conaway, in which we explained that the device was not a child restraint system:

          You [Mr. Conaway] explained * * * that one part of the product performs similarly to a device called a “locking clip” used to secure some child restraint systems. A locking clip is a bracket into which the webbing of a Type II seat belt is threaded. A locking clip typically prevents movement of the latchplate and the webbing of the lap and/or shoulder belt. Your product is not used with child restraints, but acts similarly to a locking clip by “locking” the lap belt portion of the Type II belt over the child's lap. You would instruct parents to lock the lap belt tight enough over the child such that the child will not be able to slouch or scoot forward, even to bend his or her knees at the vehicle seat cushion's edge. Attached to the locking device is a plastic guide through which the shoulder belt portion of a Type II belt is threaded. The guide positions the shoulder belt “so that it does not ride across the neck of the child.” * * *

        C. Agency Past Assessment of Seat Belt Positioners
        NHTSA has considered regulating seat belt positioning devices on several occasions, but has declined to do so. In a notice of proposed rulemaking (NPRM) dated March 16, 1994 (59 FR 12225), the agency requested comments on whether FMVSS No. 213 should be applied to belt positioning devices, and if so, what requirements would be appropriate. After considering comments on the issue, on July 6, 1995, the agency published a document explaining that it decided against regulating belt positioning devices in FMVSS No. 213 because it needed to “better assess the safety benefits of such rulemaking, and the feasibility of a test procedure and practicability of performance requirements” (60 FR at 35137). On January 31, 1996, petition for rulemaking, the American Academy of Pediatrics (AAP) voiced concern that some belt positioning devices had a tendency to interfere with proper lap and shoulder belt fit and often introduced slack in the shoulder belt. The AAP contended that since belt positioners are generally marketed as child protection devices, they should be exposed to the same certification and testing as child restraint systems, and should thus be regulated by FMVSS No. 213. The agency responded to the AAP petition by declining to undertake rulemaking on FMVSS No. 213, for the reasons given below. Instead, the agency proposed amending its consumer information regulations (49 CFR Part 575) to require proper warnings and labeling of the products (August 13, 1999 (64 FR 44164)),4
           and requested comments on an alternative or additional approach to establishing a minimum dynamic performance requirement for belt positioners. NHTSA determined that it was inappropriate for belt positioners to be regulated by FMVSS No. 213 because the agency believed that doing so could have a negative net effect on child safety. The reasons for this conclusion were as follows:

            4 In the NPRM, NHTSA proposed to define “seat belt positioner” as “a device, other than a belt-positioning seat, that is manufactured to alter the positioning of Type I and/or Type II belt systems in motor vehicles.”

        • A comparison study of dynamic sled tests with the Hybrid II 3-year-old and 6-year-old dummies, restrained with either the lap/shoulder belt and one of three different belt positioners, or with a lap/shoulder belt only, indicated that belt positioning devices generally reduced belt performance of the lap/shoulder belt system, and led to increased head and chest injury criteria measurements, and head and knee excursions measurements for the 3-year-old dummy.5
           6
           Testing with the 6-year-old also revealed the dummy's tendency to roll out of the seat belt positioner and around the shoulder belt, not to mention the possible introduction of belt slack, when a belt positioner was used.7

            5 These tests were conducted by the agency in 1994 in an attempt to better assess the benefits of a rulemaking for belt positioning devices as the Agency looked to amend FMVSS No. 213. See NHTSA Test Nos. 3101—3114.

            6 64 FR 44166, August 13, 1999.

            7 “Evaluation of Devices to Improve Shoulder Belt Fit,” DOT HS 808 383, Sullivan and Chambers, August 1994. The report is available from the National Technical Information Service, Springfield, VA 22161.

        • A comparison study of tests for belt positioning devices to FMVSS No. 213 compliance tests compiled between 1993 and 1998 for both the 3-year-old and the 6-year-old child dummies positioned in either convertible child restraints or belt-positioning booster seats indicated that children are typically afforded greater levels of protection when using either type of child restraint than when using a lap/shoulder belt system with a belt positioner.8

            8 64 FR 44168, August 13, 1999. FMVSS No. 213 compliance test data from 1993 to 1998 can be found through the National Technical Information Service, Springfield, VA 22161.

        • It was unknown whether the requirements of FMVSS No. 213 could adequately assess belt positioners and discern between acceptable and unacceptable performance. Also, abdominal loading could not be evaluated because the applicable child dummies were not fitted with abdominal sensors and no abdominal injury criteria existed.
        • Child restraint systems offered additional benefits for toddlers over seat belt positioners, including (1) A high back and side support, which permit neck support and support in side impacts, (2) an internal harness which diverts and distributes dynamic crash forces away from vulnerable soft tissues and organs, and (3) a comfortable fit, which discourages slouching and thus the repositioning of the lap belt over a child's soft abdominal area.
        • Some consumers may prematurely graduate their child from a recommended age/size-appropriate child restraint such as a toddler seat or a belt-positioning booster seat to the lap/shoulder belt with seat belt positioner, thereby degrading the child's crash protection.9

            9 NHTSA recommends that children weighing over 40 lbs. be restrained in a booster seat until they are tall enough so that they can, without the aid of a booster seat: (1) Wear the shoulder belt comfortably across their shoulder, and secure the lap belt across their pelvis, and (2) bend their legs over the front of the seat when their backs are against the vehicle seat back.

        In a Federal Register notice published on March 23, 2004 (69 FR 13503), the agency terminated the rulemaking regarding the consumer information requirement for seat belt positioners. The decision was made because crash data did not quantify a safety need to regulate seat belt positioners, and because NHTSA became concerned that the labeling proposed in the NPRM could be misconstrued by some parents as an agency recommendation that it would be acceptable to restrain 6-year-old children in a vehicle belt system if a belt-positioner were used. Such a conclusion would be contrary to the recommendation of the agency that 6-year-old children are best restrained when in a belt-positioning booster seat. Also, further testing was being planned for belt guidance devices pursuant to Anton's Law.10
           Section 3(b)(2) of Anton's Law directed the NHTSA to consider whether to establish injury performance requirements for seat belt fit when used with booster seats and other belt guidance devices.

            10 Pub. L. 107-318, 116 Stat. 2772.

        In response to Section 3(b)(2) of Anton's Law, the agency analyzed several studies exploring the extent to which booster seats differ in how they affect the fit of a vehicle's belts on a child. The agency did determine that various booster seats could differ in how belts fit but was unable to conclude that the small differences translated into associated differences in the dynamic performance of a belt system in a crash. The agency also found that belt positioning devices improved belt fit, but was unable to conclude how these devices would affect belt performance when tested dynamically. The agency decided that proposing performance criteria for safety belt fit for booster seats or belt guidance devices was unwarranted.
        D. Correspondence on the Hip-Hugger
        As noted above, the agency first corresponded with Mr. Brian J. Conaway about the Hip-Hugger in 2001. At that time, Mr. Conaway requested an interpretation of whether the Hip-Hugger, a small, plastic device which attaches to Type II seat belts to restrain children weighing between 50 and 100 pounds (lb), would be classified as a child restraint system under FMVSS No. 213, and alternatively if it would be considered a seat belt positioner. In an interpretation letter dated June 1, 2001, the agency informed Mr. Conaway that his product did not meet the definition of a child restraint system as set forth in FMVSS No. 213.11
           The agency explained that Mr. Conaway's device was designed to position a seat belt, not to restrain, seat, or position children. The agency noted that at that time, it did not have a standard or regulation for seat belt positioners, but acknowledged that the description of the Hip-Hugger did seem to conform to the definition of a seat belt positioner proposed in the August 13, 1999 NPRM (“a device, other than a belt-positioning seat, that is manufactured to alter the positioning of Type I and/or Type II belt systems in motor vehicles”). In 2006 and 2007, Mr. Conaway wrote follow-up letters to NHTSA raising the same issues as those raised in his 2001 letters, to which NHTSA replied on October 26, 2006, and March 12, 2007. In each of the agency's responses, NHTSA maintained the position that the Hip-Hugger did not meet the definition of a child restraint system set forth in FMVSS No. 213 because the Hip-Hugger does not itself restrain, seat, or position a child occupant in a crash.

            11  http://isearch.nhtsa.gov/files/Conawaylockingmechanism.html.

        III. Analysis of Petition
        The Agency's opinion regarding Mr. Conaway's device has not changed since its first correspondence with him in 2001; the petitioner has not suggested that the design of this device has been altered. The Hip-Hugger is a belt positioning device. The petitioner seeks to revise FMVSS No. 213's definition of child restraint system to include devices such as belt-positioning devices.
        We do not agree to this suggestion for several reasons. First, there is no evidence of a real-world safety problem with seat belt positioners. There is no safety need for an FMVSS to apply to seat belt positioners or a need to incorporate seat belt positioners into FMVSS No. 213. NHTSA has considered the safety need for the requested rulemaking, agency resources and agency priorities, and has determined that the petition should be denied.
        Second, we do not believe that a denial “limits innovation and advancements in child restraint design” as the petitioner maintains. The main effect of the denial is that petitioner may not refer to it as a child restraint system or certify that it meets FMVSS No. 213. The petitioner may continue to produce and market his device even when FMVSS No. 213 does not apply to it. This denial does not hamper the production of the device in any way. Seat belt positioners are considered motor vehicle equipment and their manufacturers are thus subject to the requirements of 49 U.S.C. 30119 and 30120 concerning the recall and remedy of products with safety-related defects.
        Third, we are denying the petition because the agency also remains concerned, as discussed in the August 13, 1999 NPRM, that FMVSS No. 213 is not an appropriate standard for the devices. Including seat belt positioners in FMVSS No. 213 could unintentionally encourage premature graduation to lap/shoulder belts with belt positioners, which could degrade a child's safety by inducing injuries, such as abdominal injuries, caused by submarining.12
           A recent study of abdominal injuries conducted by Partners for Child Passenger Safety showed that children aged four to eight years whose restraint use was suboptimal, were more than three times more likely to sustain an abdominal injury than optimally restrained children.13
           Additionally, since FMVSS No. 213 does not currently have abdominal injury limits, as none of the child test dummies have an abdominal insert capable of measuring injury levels, nor has an abdominal injury criterion been established for any of the child crash test dummies utilized in FMVSS No. 213, FMVSS No. 213 might not adequately distinguish “acceptable” performers from “unacceptable” ones, and thus a certification to the standard could be meaningless.

            12 Submarining occurs when the pelvis becomes unrestrained by the lap belt portion of a safety belt assembly and then slides under the lap belt in a frontal impact. As a result, the belt is free to enter the abdominal cavity and cause injury to the unprotected internal organs and lumbar spine.

            13 Annals of Surgery, January 2004.

        In April 2005, the Agency conducted dynamic testing in accordance with FMVSS No. 213 using the Hybrid III 6-year-old and 10-year-old dummies in booster seats, belt positioning devices, and vehicle lap/shoulder belts as part of the preparation for the August 31, 2005 NPRM (70 FR 51731) to incorporate the Hybrid III 10-year-old dummy into FMVSS No. 213. The results substantiated the agency's past concerns with incorporating belt positioners into the current standard. On average, this testing produced head and chest readings for both dummies that were as high or higher when belt positioning devices were used compared to when only a lap/shoulder belt or a belt positioning booster was used.14
           15
           Therefore, this data suggests that child belt positioning devices, which do not meet the standard's definitional requirements, do not generally perform better than other devices that do meet the standard's definitional requirements.

            14 Associated sled test data can be found along with this petition response in Docket # 2007-27027.

            15 In accords with that suggested in the August 31, 2005 NPRM, the Hybrid III-10C dummy was positioned in both an upright seating posture and a slouched posture to determine if posture has an effect on the performance of belts and belt positioning devices. This dummy has yet to be adopted into FMVSS No. 213.

        Contrary to Mr. Conaway's assertion that the definitions detailed in FMVSS No. 213 stifle child safety benefits, the current Standard has proven to be very effective. Real world crash data have shown that current child restraints, as defined by FMVSS No. 213, reduce the likelihood of fatalities in passenger car crashes by 71% for infants (less than one-year-old) and 54% for toddlers (one-to four-years-old). For infants and toddlers in light trucks, the corresponding reductions are 58% and 59%, respectively.16
           Also, belt-positioning booster seats lower the risk of injury to children aged four through seven years by 59 percent compared to the use of vehicle seat belts alone.17

            16 2005 Traffic Safety Facts, NHTSA.

            17 Journal of American Medical Association, June 2003.

        IV. Conclusion
        The agency has decided to deny Mr. Conaway's petition for rulemaking. For the reasons listed herein, the agency disagrees that the definitions in FMVSS No. 213 are too restrictive and therefore sees no reason to alter the definitional requirements at this time. Furthermore, because the agency does not believe that belt positioners offer the same level of occupant protection as age-appropriate child restraint systems, the agency is also denying Mr. Conaway's request to incorporate a new definition for belt positioning devices into FMVSS No. 213.

          Authority:
          49 U.S.C. 30162; delegations of authority at 49 CFR 1.50 and 49 CFR 501.8.

          Issued on: December 11, 2008.
          Stephen R. Kratzke,
          Associate Administrator for Rulemaking.

      [FR Doc. E8-29728 Filed 12-15-08; 8:45 am]
      BILLING CODE 4910-59-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 00-2211, MM Docket No. 00-180, RM-9956]
        Digital Television Broadcast Service; Fort Myers, FL

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Commission requests comments on a petition filed by Fort Myers Broadcasting, licensee of Station WINK-TV, NTSC Channel 11, Fort Myers, Florida, proposing the substitution of DTV Channel 9 for Station WINK-TV's assigned DTV Channel 53. DTV Channel 9 can be allotted to Fort Myers, Florida, in compliance with the principle community coverage requirements of Section 73.625(a) at reference coordinates (26-48-01 N. and 81-45-47 W.). As requested, we propose to allot DTV Channel 9 to Fort Myers with a power of 20 and a height above average terrain (HAAT) of 451 meters.

          DATES:
          Comments must be filed on or before November 24, 2000, and reply comments on or before December 11, 2000.

          ADDRESSES:
          Federal Communications Commission, 445 12th Street, S.W., Room TW-A325, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, or its counsel or consultant, as follows: Joseph A. Belisle, Leibowitz & Associates, P.A., One SE 3rd Avenue, Suite 1450, Miami, Florida 33131 (counsel for Fort Myers Broadcasting Company).

          FOR FURTHER INFORMATION CONTACT:
          Pam Blumenthal, Mass Media Bureau, (202) 418-1600.

        SUPPLEMENTARY INFORMATION:
        This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 00-180, adopted September 29, 2000, and released October 2, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center 445 12th Street, S.W., 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.
        For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

          Federal Communications Commission.
          Barbara A. Kreisman,
          Chief, Video Services Division, Mass Media Bureau.

      [FR Doc. 00-25526 Filed 10-4-00; 8:45 am]
      BILLING CODE 6717-01-P


        DEPARTMENT OF DEFENSE
        Defense Acquisition Regulations System
        48 CFR Parts 246 and 252
        RIN 0750-AH95
        Defense Federal Acquisition Regulation Supplement: Clauses With Alternates—Quality Assurance (DFARS Case 2013-D004)

          AGENCY:
          Defense Acquisition Regulations System, Department of Defense (DoD).

          ACTION:
          Proposed rule.

          SUMMARY:
          DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to create an overarching prescription for each set of quality assurance-related provisions/clauses with one or more alternates. In addition, the proposed rule would include the full text of each provision and/or clause alternate.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before October 7, 2013, to be considered in the formation of a final rule.

          ADDRESSES:
          Submit comments identified by DFARS Case 2013-D004, using any of the following methods:
          ○ Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2013-D004” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2013-D004.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2013-D004” on your attached document.
          ○ Email: dfars@osd.mil. Include DFARS Case 2013-D004 in the subject line of the message.
          ○ Fax: 571-372-6094.
          ○ Mail: Defense Acquisition Regulations System, Attn: Ms. Susan Williams, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

          Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

          FOR FURTHER INFORMATION CONTACT:
          Ms. Susan Williams, Defense Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6092; facsimile 571-372-6101.

        SUPPLEMENTARY INFORMATION:
        I. Background
        DoD is proposing to revise the DFARS to create an overarching prescription for the quality assurance clause with two alternates. The rule also proposes to add a separate prescription for the basic clause as well as each alternate. For clarity, the preface of each alternate will continue to explain what portions of that alternate are different from the basic clause.
        Separate prescriptions for the basic and alternates of DFARS clauses will facilitate the use of automated contract writing systems. The proposed rule will not revise the prescriptions in any substantive way or change the applicability of the clauses or their alternates.
        The inclusion of the full text of each clause alternate aims to make the terms of a clause alternate clearer to offerors and to DoD contracting officers. The current convention for alternates is to show only the changed paragraphs from the basic provision or clause. This proposed rule would include the full text of each clause and each alternate, which will assist in making solicitation and contract terms and conditions easier to read and understand. By placing alternates in full text, all paragraph substitutions from the basic clause will have already been made. Inapplicable paragraphs from the basic clause that are superseded by the alternate will not be included in the solicitation or contract in order to prevent confusion.

        Although this rule proposes to include each alternate in full, it retains the language that precedes the clause or alternate, which includes the location of the alternate's prescription and a statement that identifies which paragraphs were changed from the basic clause. Further, alternates are proposed to have individual titles that tie them to the basic clause, e.g., “Warranty of Data—Alternate I” in lieu of “Alternate I.”
        II. Discussion

        This proposed rule addresses only the single DFARS part 246 clause that has alternates. The remaining prescriptions in part 246 are not proposed to be changed in any way by this rule. The affected clause is 252.246-7001, Warranty of Data, with two alternates. The naming convention results in proposed new clause titles, e.g., Warranty of Data—Basic and Warranty of Data—Alternate I.

        An umbrella prescription is proposed to be added for the elements common to the basic clause and both alternates. The specific prescription for the basic clause and each alternate would then address only the requirements for their use that enable the selection of the basic or one of the alternates. For example, the revised prescription for Warranty of Data—Alternate I would read as follows: “Use the clause at 252.246-7001, Warranty of Data—Alternate I, in fixed-price incentive solicitations and contracts.” The planned changes will increase the clarity and ease of use, but will not revise the applicability in any way. The text of the current DFARS 252.246-7001, Alternate I, would no longer consist solely of paragraph (d)(3), but would include the entire text of DFARS 252.246-7001 (basic clause) with the revised paragraph (d)(3) substituted for the corresponding paragraph of the basic clause. Inapplicable paragraphs from the basic version of the clause that are superseded by the alternate will not be included in the solicitation or contract in order to prevent confusion.

        Further, this proposed rule would also revise the applicable preface, i.e., the language in part 252 that precedes a provision, clause, or alternate. The proposed rule would replace the current preface language with a statement that identifies the specific changes from the basic version of the solicitations provision or clause.
        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

        DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it merely revises the prescriptions for solicitation provisions and clauses with alternates to be unique, as well as includes the full text of each provision or clause in each alternate. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:
        The purpose of this proposed rule is to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to create unique prescriptions for the basic version and each alternate of DFARS part 246 solicitations provisions and clauses, and to include the full text of each clause alternate.
        The use of automated contract writing systems will be facilitated by having unique prescriptions for the basic version and each alternate of DFARS solicitations provisions and clauses. The current convention requires the prescription for the basic provision or clause to address all the possibilities covered by the alternates, and then the prescription for each alternate addresses only what is different for the use of that particular alternate. This rule will revise the prescriptions, so that the basic solicitation provision or clause and each alternate is unique and stands on its own. The prescriptions will not be revised in any way to change when they are applicable to offerors, contractors, or subcontractors.
        Additionally, the inclusion of the full text of each provision or clause alternate aims to make the terms of a provision or clause alternate clearer to offerors, as well as to DoD contracting officers. Instead of the current convention for alternates to show only paragraphs changed from the basic version of the provision or clause, this rule proposes to include the full text of each version of the clause. This will assist in making the terms of the clause clearer, because all paragraph substitutions will have already been made. Inapplicable paragraphs from the basic version of the clause that are superseded by the alternate are not included in the solicitation or contract to prevent confusion.
        Potential offerors, including small businesses, may be affected by this rule by seeing an unfamiliar format for clause alternates in solicitations and contracts issued by DoD contracting activities. An average of 12,618,521 new contracts was awarded in Fiscal Years 2011 and 2012, and an average of 1,557,852 of these actions (12.35%) was awarded to small businesses. It is unknown how many of these contracts were awarded that included an alternate to a DFARS provision or clause. Nothing substantive will change in solicitations or contracts for potential offerors, and only the appearance of how clause alternates are presented in the solicitations and contracts will be changed. This rule may result in potential offerors, including small businesses, expending more time to become familiar with and to understand the new format of the clause alternates in full text contained in contracts issued by any DoD contracting activity. The rule also anticipates saving contractors time by making all paragraph substitutions from the basic version of the clause, and not requiring the contractors to read inapplicable paragraphs contained in the basic version of the clause where alternates are also included in the solicitations and contracts. The overall burden caused by this rule is expected to be negligible and will not be any greater on small businesses than it is on large businesses.
        This rule does not add any new information collection requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. No alternatives were identified that will accomplish the objectives of the rule.
        DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
        DoD 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 (DFARS Case 2013-D004), in correspondence.
        V. Paperwork Reduction Act
        The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

          List of Subjects in 48 CFR Parts 246 and 252
          Government procurement.

          Manuel Quinones,
          Editor, Defense Acquisition Regulations System.

        Therefore, 48 CFR parts 246 and 252 are proposed to be amended as follows:
        1. The authority citation for parts 246 and 252 continue to read as follows:

          Authority:
           41 U.S.C. 1303 and 48 CFR Chapter 1.

          PART 246—QUALITY ASSURANCE

        2. Revise section 246.710 to read as follows:

          246.710
          Contract clauses.

          (a) Use a clause substantially the same as the basic or one of the alternates of the clause at 252.246-7001, Warranty of Data, in solicitations and contracts that include the clause at 252.227-7013, Rights in Technical Data and Computer Software, when there is a need for greater protection or period of liability than provided by the inspection and warranty clauses prescribed in FAR part 46.
          (1) Use the clause at 252.246-7001, Warranty of Data—Basic, in solicitations and contracts that are not firm-fixed price or fixed-price incentive.
          (2) Use the clause at 252.246-7001, Warranty of Data—Alternate I, in fixed-price-incentive solicitations and contracts.
          (3) Use the clause at 252.246-7001, Warranty of Data—Alternate II, in firm-fixed-price solicitations and contracts.
          (b) Use the clause at 252.246-7002, Warranty of Construction (Germany), instead of the clause at FAR 52.246-21, Warranty of Construction, in solicitations and contracts for construction when a fixed-price contract will be awarded and contract performance will be in Germany.
          (c)(1) In addition to 252.211-7003, Item Identification and Valuation, which is prescribed in 211.274-6(a), use the following provision and clause in solicitations and contracts when it is anticipated that the resulting contract will include a warranty for serialized items:
          (i) 252.246-7005, Notice of Warranty Tracking of Serialized Items (include only if offerors will be required to enter data with the offer); and
          (ii) 252.246-7006, Warranty Tracking of Serialized Items.

          (2) If the Government specifies a warranty, include in the solicitation the appropriate warranty attachment from DFARS 246.710-70. The contracting officer shall request the requiring activity to provide information to ensure that Attachment __, Warranty Tracking Information, is populated with data specifying the Government's required warranty provision by contract line item number, subline item number, or exhibit line item number prior to solicitation. In such case do not include 252.246-7005 in the solicitation.

          (3) If the Government does not specify a warranty, include 252.246-7005 in the solicitation, and the warranty attachment from DFARS 246.710-70. The contractor may offer a warranty and shall then populate Attachment __, Warranty Tracking Information, as appropriate, as part of its offer as required by 252.246-7005.

          (4) All warranty tracking information that is indicated with a single asterisk (*) in Attachment __, Warranty Tracking Information, shall be completed prior to award. Data indicated with two asterisks (**) may be completed at the time of award. Data indicated with three asterisks (***) may be completed at or after the time of award.
          (5) The contractor shall provide warranty repair source instructions (as prescribed in the attachment) no later than the time of delivery.

          PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        3. Revise section 252.246-7001 to read as follows:

          252.246-7001
          Warranty of Data.
          As prescribed in 246.710(1), use one of the following clauses:
          (a) Warranty of Data—Basic. For the specific prescription for use of the basic clause, see 246.710(1)(i).

            WARRANTY OF DATA—BASIC (DATE)
            (a) Definition. “Technical data” has the same meaning as given in the clause in this contract entitled, Rights in Technical Data and Computer Software.
            (b) Warranty. Notwithstanding inspection and acceptance by the Government of technical data furnished under this contract, and notwithstanding any provision of this contract concerning the conclusiveness of acceptance, the Contractor warrants that all technical data delivered under this contract will at the time of delivery conform with the specifications and all other requirements of this contract. The warranty period shall extend for three years after completion of the delivery of the line item of data (as identified in DD Form 1423, Contract Data Requirements List) of which the data forms a part; or any longer period specified in the contract.
            (c) Contractor Notification. The Contractor agrees to notify the Contracting Officer in writing immediately of any breach of the above warranty which the Contractor discovers within the warranty period.
            (d) Remedies. The following remedies shall apply to all breaches of the warranty, whether the Contractor notifies the Contracting Officer in accordance with paragraph (c) of this clause or if the Government notifies the Contractor of the breach in writing within the warranty period:
            (1) Within a reasonable time after such notification, the Contracting Officer may—
            (i) By written notice, direct the Contractor to correct or replace at the Contractor's expense the nonconforming technical data promptly; or
            (ii) If the Contracting Officer determines that the Government no longer has a requirement for correction or replacement of the data, or that the data can be more reasonably corrected by the Government, inform the Contractor by written notice that the Government elects a price or fee adjustment instead of correction or replacement.
            (2) If the Contractor refuses or fails to comply with a direction under paragraph (d)(1)(i) of this clause, the Contracting Officer may, within a reasonable time of the refusal or failure—
            (i) By contract or otherwise, correct or replace the nonconforming technical data and charge the cost to the Contractor; or
            (ii) Elect a price or fee adjustment instead of correction or replacement.
            (3) The remedies in this clause represent the only way to enforce the Government's rights under this clause.
            (e) The provisions of this clause apply anew to that portion of any corrected or replaced technical data furnished to the Government under paragraph (d)(1)(i) of this clause.

          (End of clause)
          (b) Warranty of Data—Alternate I. For the specific prescription for use of Alternate I, see 246.710(1)(ii). Alternate I uses a different paragraph (d)(3) than the basic clause.

            WARRANTY OF DATA—ALTERNATE I (DATE)
            (a) Definition. “Technical data” has the same meaning as given in the clause in this contract entitled, Rights in Technical Data and Computer Software.
            (b) Warranty. Notwithstanding inspection and acceptance by the Government of technical data furnished under this contract, and notwithstanding any provision of this contract concerning the conclusiveness of acceptance, the Contractor warrants that all technical data delivered under this contract will at the time of delivery conform with the specifications and all other requirements of this contract. The warranty period shall extend for three years after completion of the delivery of the line item of data (as identified in DD Form 1423, Contract Data Requirements List) of which the data forms a part; or any longer period specified in the contract.
            (c) Contractor Notification. The Contractor agrees to notify the Contracting Officer in writing immediately of any breach of the above warranty which the Contractor discovers within the warranty period.
            (d) Remedies. The following remedies shall apply to all breaches of the warranty, whether the Contractor notifies the Contracting Officer in accordance with paragraph (c) of this clause or if the Government notifies the Contractor of the breach in writing within the warranty period:
            (1) Within a reasonable time after such notification, the Contracting Officer may—
            (i) By written notice, direct the Contractor to correct or replace at the Contractor's expense the nonconforming technical data promptly; or

            (ii) If the Contracting Officer determines that the Government no longer has a requirement for correction or replacement of the data, or that the data can be more reasonably corrected by the Government, inform the Contractor by written notice that the Government elects a price or fee adjustment instead of correction or replacement.
            (2) If the Contractor refuses or fails to comply with a direction under paragraph (d)(1)(i) of this clause, the Contracting Officer may, within a reasonable time of the refusal or failure—
            (i) By contract or otherwise, correct or replace the nonconforming technical data and charge the cost to the Contractor; or
            (ii) Elect a price or fee adjustment instead of correction or replacement.
            (3) In addition to the remedies under paragraphs (d)(1) and (2) of this clause, the Contractor shall be liable to the Government for all damages to the Government as a result of the breach of warranty.
            (i) The additional liability under paragraph (d)(3) of this clause shall not exceed 75 percent of the target profit.
            (ii) if the breach of the warranty is with respect to the data supplied by an equipment subcontractor, the limit of the Contractor's liability shall be—
            (A) Ten percent of the total subcontract price in a firm fixed price subcontract;
            (B) Seventy-five percent of the total subcontract fee in a cost-plus-fixed-fee or cost-plus-award-fee subcontract; or
            (C) Seventy-five percent of the total subcontract target profit or fee in a fixed-price or cost-plus-incentive-type contract.
            (iii) Damages due the Government under the provisions of this warranty are not an allowable cost.
            (iv) The additional liability in paragraph (d)(3) of this clause shall not apply—
            (A) With respect to the requirements for product drawings and associated lists, special inspection equipment (SIE) drawings and associated lists, special tooling drawings and associated lists, SIE operating instructions, SIE descriptive documentation, and SIE calibration procedures under MIL-T-31000, General Specification for Technical Data Packages, Amendment 1, or MIL-T-47500, General Specification for Technical Data Packages, Supp 1, or drawings and associated lists under level 2 or level 3 of MIL-D-1000A, Engineering and Associated Data Drawings, or DoD-D-1000B, Engineering and Associated Lists Drawings (Inactive for New Design) Amendment 4, Notice 1; or drawings and associated lists under category E or I of MIL-D-1000, Engineering and Associated Lists Drawings, provided that the data furnished by the Contractor was current, accurate at time of submission, and did not involve a significant omission of data necessary to comply with the requirements; or
            (B) To defects the Contractor discovers and gives written notice to the Government before the Government discovers the error.
            (4) The provisions of this clause apply anew to that portion of any corrected or replaced technical data furnished to the Government under paragraph (d)(1)(i) of this clause.

          (End of clause)
          (c) Warranty of Data—Alternate II. For the specific prescription for use of Alternate II, see 246.710(1)(iii). Alternate II uses a different paragraph (d)(3) than the basic clause.

            WARRANTY OF DATA—ALTERNATE II (DATE)
            (a) Definition. “Technical data” has the same meaning as given in the clause in this contract entitled, Rights in Technical Data and Computer Software.
            (b) Warranty. Notwithstanding inspection and acceptance by the Government of technical data furnished under this contract, and notwithstanding any provision of this contract concerning the conclusiveness of acceptance, the Contractor warrants that all technical data delivered under this contract will at the time of delivery conform with the specifications and all other requirements of this contract. The warranty period shall extend for three years after completion of the delivery of the line item of data (as identified in DD Form 1423, Contract Data Requirements List) of which the data forms a part; or any longer period specified in the contract.
            (c) Contractor Notification. The Contractor agrees to notify the Contracting Officer in writing immediately of any breach of the above warranty which the Contractor discovers within the warranty period.
            (d) Remedies. The following remedies shall apply to all breaches of the warranty, whether the Contractor notifies the Contracting Officer in accordance with paragraph (c) of this clause or if the Government notifies the Contractor of the breach in writing within the warranty period:
            (1) Within a reasonable time after such notification, the Contracting Officer may—
            (i) By written notice, direct the Contractor to correct or replace at the Contractor's expense the nonconforming technical data promptly; or
            (ii) If the Contracting Officer determines that the Government no longer has a requirement for correction or replacement of the data, or that the data can be more reasonably corrected by the Government, inform the Contractor by written notice that the Government elects a price or fee adjustment instead of correction or replacement.
            (2) If the Contractor refuses or fails to comply with a direction under paragraph (d)(1)(i) of this clause, the Contracting Officer may, within a reasonable time of the refusal or failure—
            (i) By contract or otherwise, correct or replace the nonconforming technical data and charge the cost to the Contractor; or
            (ii) Elect a price or fee adjustment instead of correction or replacement.
            (3) In addition to the remedies under paragraphs (d)(1) and (2) of this clause, the Contractor shall be liable to the Government for all damages to the Government as a result of the breach of the warranty.
            (i) The additional liability under paragraph (d)(3) of this clause shall not exceed ten percent of the total contract price.
            (ii) If the breach of the warranty is with respect to the data supplied by an equipment subcontractor, the limit of the Contractor's liability shall be—
            (A) Ten percent of the total subcontract price in a firm fixed-price subcontract;
            (B) Seventy-five percent of the total subcontract fee in a cost-plus-fixed-fee or cost-plus-award-fee subcontract; or
            (C) Seventy-five percent of the total subcontract target profit or fee in a fixed-price or cost-plus-incentive-type contract.
            (iii) The additional liability specified in paragraph (d)(3) of this clause shall not apply—
            (A) With respect to the requirements for product drawings and associated lists, special inspection equipment (SIE) drawings and associated lists, special tooling drawings and associated lists, SIE operating instructions, SIE descriptive documentation, and SIE calibration procedures under MIL-T-31000, General Specification for Technical Data Packages, Amendment 1, or MIL-T-47500, General Specification for Technical Data Packages, Supp 1, or drawings and associated lists under level 2 or level 3 of MIL-D-1000A, Engineering and Associated Data Drawings, or DoD-D-1000B, Engineering and Associated Lists Drawings (Inactive for New Design) Amendment 4, Notice 1; or drawings and associated lists under category E or I of MIL-D-1000, Engineering and Associated Lists Drawings, provided that the data furnished by the Contractor was current, accurate at time of submission, and did not involve a significant omission of data necessary to comply with the requirements; or
            (B) To defects the Contractor discovers and gives written notice to the Government before the Government discovers the error.
            (4) The provisions of this clause apply anew to that portion of any corrected or replaced technical data furnished to the Government under paragraph (d)(1)(i) of this clause.

          (End of clause)

          252.246-7002
          [Amended]

        4. Amend introductory text of section 252.246-7002 by removing “As prescribed in 246.710(4)” and adding “As prescribed in 246.710(2)” in its place.

          252.246-7005
          [Amended]

        5. Amend introductory text of section 252.246-7005 by removing “As prescribed in 246.710(5)(i)(A)” and adding “As prescribed in 246.710(3)(i)(A)” in its place.

          252.246-7006
          [Amended]

        6. Amend introductory text of section 252.246-7006 by removing “As prescribed in 246.710(5)(i)(B)” and adding “As prescribed in 246.710(3)(i)(B)” in its place.

      [FR Doc. 2013-19021 Filed 8-7-13; 8:45 am]
      BILLING CODE 5001-06-P


        GENERAL SERVICES ADMINISTRATION
        41 CFR Parts 300-3, 302-3, 302-5, 302-7, 302-12, and 302-16
        [FTR Case 2007-304; Docket 2007-0002, Sequence 1]
        RIN 3090-AI37
        Federal Travel Regulation; FTR Case 2007-304, Relocation Allowances-Governmentwide Relocation Advisory Board

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

          ACTION:
          Proposed rule.

          SUMMARY:

          The General Services Administration (GSA), Office of Governmentwide Policy (OGP), continually reviews and adjusts policies as a part of its ongoing mission to provide policy assistance to the Government agencies subject to the Federal Travel Regulation (FTR). Accordingly, GSA created the Governmentwide Relocation Advisory Board (GRAB), consisting of Government and private industry relocation experts, to examine Government relocation policy. To allow for the use of private industry expertise in the rulemaking and possible legislative actions, the GRAB was chartered through the Federal Advisory Committee Act on July 9, 2004. The GRAB submitted a final report of its findings on September 15, 2005. If implemented, the 100 plus recommendations of the GRAB would keep Government relocation practices aligned with private sector best practices, as well as improve the overall management of Government relocation programs and reduce costs. This proposed rule transforms many of the GRAB’s recommendations into FTR policy. The GRAB Findings and Recommendations and corresponding documents may be accessed at GSA’s Web site at http://www.gsa.gov/grab.

          DATES:
          Interested parties should submit comments in writing on or before October 2, 2007 to be considered in the formulation of a final rule.

          ADDRESSES:
          Submit comments identified by FTR case 2007-304 by any of the following methods:

        • Federal eRulemaking Portal: http://www.regulations.gov. Search for any document by first selecting the proper document types and selecting “General Services Administration - All” as the agency of choice. At the “Keyword” prompt, type in the FTR case number (for example, FTR Case 2007-304) and click on the “Submit” button. You may also search for any document by clicking on the “Advanced search/document search” tab at the top of the screen, selecting from the agency field “General Services Administration - All”, and typing the FTR case number in the keyword field. Select the “Submit” button.
        • Fax: 202-501-4067.
        •Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.

          Instructions: Please submit comments only and cite FTR case 2007-304 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

          FOR FURTHER INFORMATION CONTACT:

          Mr. Ed Davis, Office of Travel, Transportation and Asset Management (MT), General Services Administration at (202) 208-7638 or e-mail at ed.davis@gsa.govfor clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FTR case 2007-304.

        SUPPLEMENTARY INFORMATION:
        A. Background
        The General Services Administration (GSA), Office of Governmentwide Policy (OGP), reviews the regulations under its purview to address current Government relocation needs and incorporates private industry policies and best practices, where appropriate. The relocation services industry is complex and changes frequently. Changes in relocation policy need to be made to comport with industry best practices.
        With the exception of the Relocation Income Tax Allowance (RITA), which will be addressed in a subsequent proposed rule, most of the cost of a relocation is related to the residence transactions. The Federal Government has traditionally reimbursed up to 10 percent of the selling price of the previous residence and 5 percent of the purchase price of the new home (this is known as direct reimbursement). Currently, the tax implications of this transaction are handled through a two-year RITA process, and there are long delays in getting equity into the hands of the employee so that a new residence can be purchased. Through a homesale program, directed by a contracted vendor, these two issues can be solved for the benefit of both the agency and employee. The result is that the employee receives equity when selling to the contracted vendor, and this transaction if accomplished through a vendor, is not taxable to the employee.
        For smaller relocation expenses such as the Miscellaneous Expense Allowance (MEA), much of private industry uses lump-sum payments. These payments have a small one-time administrative cost and do not need to be reconciled in a post-payment audit. The administrative savings and efficiency improvements of such systems are clear because far less staff time is needed to administer, monitor, and audit payments in a lump-sum scenario.

        Private industry spends less time on its relocation packages because they are tiered and handle special circumstances more flexibly. Also, in private industry, payment or reimbursement of relocation expenses to the employee or third party vendor rarely extends beyond one year because there are few extensions. The focus is on getting the transferee settled at the new location in permanent quarters as quickly as possible. The main lesson that the Government can learn from benchmarking against private industry is that efficiency is important.
        OGP has examined the issues facing agencies and their relocating employees. Through GRAB recommendations, internal GSA discussions, consideration of Governmentwide policy interests, and comments added by the Executive Relocation Steering Committee, this proposed rule emerged.
        B. Proposed Rule
        This proposed rule implements some of the GRAB’s recommendations. The changes in part 302 will necessitate the addition of the following definitions to part 300-3: amended value sale, appraised value sale, buyer’s value option (BVO), fair market value, and relocation services company (RSC).
        The proposed changes to 41 CFR Chapter 302 are designed to:

          Reinforce the difference between mandatory and discretionary relocation allowances and clarify the tables in part 302-3- The GRAB wanted to ensure that the FTR highlights which relocation benefits are mandatory and which are discretionary. To do this, several errors need to be corrected in the tables outlining benefits.

          Use the standard continental United States (CONUS) per diem for calculating actual expense per diems for househunting trips (HHTs) and the locality rate per diem for calculating lump-sum HHT benefits in part 302-5 - The GRAB final report explains this issue well:

          “. . . , the implementing regulations for FETRA [Federal Employee Travel Reform Act]. . . created an unfortunate inconsistency between HHT and TQSE [temporary quarters subsistence expense] benefits. From that time and continuing today, the traditional method for claiming HHT expenses is linked to the locality rate (FTR Part[sic] 302-5.13 and Part [sic] 301-11.100), while the traditional method for claiming TQSE expenses is linked to the CONUS rate (FTR Part [sic] 302-6.102). Not only is this inconsistent from a practical and logical point of view, it creates an unintended constraint on encouraging the use of a more cost-effective lump-sum HHT reimbursement method: Why should any transferee use the lump-sum benefit granting 5 days’ worth of the locality rate [actually, the lump-sum method uses a multiplier of 6.25 days for both going on the trip or a multiplier of 5 days for only one person going on the HHT], when they could use the traditional method and receive up to 10 days“ worth of the locality rate? Simply saving the trouble of submitting receipts is not a sufficient motivator to forego 5 days’ worth of the locality rate. Even if transferees found that the ease of paperwork and the benefit of having their reimbursement paid up-front convinced them to use the lump-sum benefit anyway, the fact that the FTR contains this inconsistency is reason enough to make the change.”

        GSA originally intended for the househunting regulation to mirror the TQSE process, where the agency either reimburses actual expenses for up to 120 days at the lower standard CONUS rate or calculates a lump-sum reimbursement for up to 30 days, with the higher locality rate as the multiplier. This would give the agencies and transferred employees a real chance to use the incentives of higher payments for a shorter timeframe to get the employees to move into permanent quarters faster. People do actually choose the lump sum for TQSE, but they do not use the lump sum for HHTs because the error removed the intended economic incentive. Agencies report that because of the error, the lump-sum househunting trips are underutilized, while the lump sum for TQSE is frequently utilized.
        By emulating the TQSE regulations and correcting the error that GSA made in creating the existing househunting regulation, real economic incentives will help work towards employees managing their househunting trips more economically. Just as with the TQSE, the use of the higher locality rate for the lump-sum payment versus the lower standard CONUS rate for actual expense reimbursement will incentivize faster househunting trips managed more carefully by an employee who has economic reasons to do so.

          Changing the storage allowance for the temporary storage of Household Goods by amending section 302-7.8 - The GRAB recommended that, instead of allowing for temporary storage for 90 days with one possible 90-day extension, as the FTR does today, the temporary storage benefit should be more logically planned and utilized. The GRAB’s recommendation for temporary storage for CONUS to CONUS transfers is that temporary storage would be limited to 60 days, with no extensions possible. Federal agencies strongly oppose the loss of any possible extension because of the inflexibility this imposes on legitimate cases.
        In consideration of the Federal agencies’ need for flexibility, we are proposing that CONUS to CONUS moves will have their storage reduced to 60 days with a 30-day extension. This is in line with private industry, which rarely stores household goods for very long. However, since transfers to or from Outside the Continental United States (OCONUS) locations present greater, inherent problems, we are proposing to continue to allow for 90 days with a possible 90-day extension for any shipment that has an OCONUS origin or destination.
        It is also important for agencies to have a management plan for deciding how and when they will grant temporary storage extensions. This must be based on genuine relocation criteria and not an automatic benefit. Extensions should only be granted for legitimate, unanticipated reasons, not for anything that is the result of poor planning by the employee.

          Require employees to limit the asking price to 105% of the appraised value estimate of their home value and to attend residence transaction counseling sessions by changing section 302-12.3 - The GRAB recommendation allows for having two 30-day periods in the marketing of a home in the homesale program, with the latter period limited to 105% of the appraised value or broker’s estimate. This regulation, in line with the current real estate market, where houses sit for much longer than they did when the GRAB was meeting, sets the time for marketing under the broker price at 60 days. This is fair to the home owner, who would have 30 days to let the market justify a belief in a higher price, and it is fair to the RSC, who would then have 30 days to market the house with the price they saw as more in line with its value.
        With mandatory counseling sessions, agencies ensure that the employees who are relocating understand the different transactions involved in a home sale or purchase. This is an important part of any comprehensive program because unless the employee understands the process, problems regarding implementation may occur.

          Require homes to be listed for 60 days prior to accepting an appraised value sale under section 302-12.3(c) - As was mentioned in the explanation directly above, of the three major homesale programs used by private industry, the appraised value option is the most costly of the three, even though it is a valuable tool when compared to direct reimbursement. The GRAB Report states that appraised value is used by the Government for 41% of homesale program transactions versus the 18% of private industry homesale transactions. The GRAB report strongly recommends that Government homesale programs drive the balance towards amended and BVO options.

        By requiring that each agency contracting with an RSC employ a 60-day listing prior to accepting an appraised value sale, the number of appraised value sales will be reduced, and the Government will shift its mix of homesale programs to resemble that of private industry. According to the work of the Employee Relocation Council’s auditor, Raffa and Associates, as shown in the GRAB Findings and Recommendations, a shift into the same portfolio mix as private industry would save the Government $35.1 million per year.
        A 60-day listing period may seem like a long time, but it allows for sales in a slower market. In a heated housing market, the listing will rarely get to 60 days.

          Require employees to use the homesale marketing counseling services offered by the homesale contractor under section 302-12.3(e) - One of the problems inherent in homesale programs is the complexity of the various programs. Direct reimbursement by contrast can be easier to understand. If savings are going to be realized through the use of homesale programs, the employee must understand the options thoroughly. An easy way to do that is by having the employee receive counseling on the various options provided by the RSC. The counseling helps the agency, company, and employee because it clarifies what employees must do to participate in the program and what options the employee has to consider while dealing with the sale of one of his or her largest assets. The agency has a responsibility to monitor these counseling sessions and make sure that the materials and presentation are fair and useful to the employee. Requiring this counseling is useful to everyone.

          Require that agencies examine and evaluate their relocation programs and determine whether or not a comprehensive homesale program should be part of their program under sections 302-12.105 and 302-12.106 - The Government has a major difference from private industry in their contracts with RSCs for administering homesale programs. The Government cannot legally assume title to the property from a homesale program, while most private sector companies can assume title. Therefore, the RSCs charge the Government slightly more than they charge private companies, to cover the additional risk that the RSC assumes on each property. This gives the appearance to agencies that RSC-managed homesale programs are more expensive than direct reimbursement for homesale costs, which is the most common practice among Federal agencies. Other factors also make the homesale programs appear more expensive to Government managers. As the GRAB final report states:

          Most agencies that do not offer their transferees access to a home-sale program base the decision on a perception that reimbursements of direct home-sale costs are lower than the fees generally associated with a RMC [RSC] home-sale program (e.g., up to 10% of the home-sale price for direct reimbursement versus up to 23.5% for a RMC [RSC] home-sale program under [GSA Multiple Awards] Schedule 48). This perception ignores the fact that direct reimbursements are taxable income to the employee and, therefore, typically require added reimbursement from the Government to cover that tax liability, whereas properly structured RMC-[RSC-] assisted homesales are not.

        The GRAB recommended that the FTR make it mandatory that each agency implement a comprehensive homesale program, including amended, appraised, and BVO’s. Furthermore, the GRAB recommended that each agency try to tilt their mix of the three homesale programs away from the more expensive appraised value and towards the amended and BVO style programs, where actual offers determine the value of a residence. GSA is in strong support of this program but is not willing to mandate that all agencies implement a homesale program. GSA’s position is that this would go against the philosophy that agencies are better managers of their own programs because they understand each agency’s culture and mission better than GSA. However, use of a comprehensive homesale program through an RSC should be a first consideration for all agencies in designing and administering their residence transactions, because the economics of the relocation industry indicate that direct reimbursement is a tool that is best used only for cases where the property is difficult to sell (i.e., houseboats, mobile homes, geodesic domes, houses with mold or artificial stucco, etc.). This proposed rule would make use of a homesale program the first consideration.
        The other reason that GSA does not want to mandate homesale programs in lieu of direct reimbursement is that it believes market forces are clearly directing agencies towards doing this as a business decision. More and more agencies are contracting with RSCs for homesale services. GSA also does not want the regulation to require one method of residence transaction reimbursement, because this would possibly prevent evolution of or migration to another new method should one develop. Relocation is a quickly changing industry and the regulation must allow agencies flexibility.

          Allow broader use of the Miscellaneous Expense Allowance (MEA) under part 302-16 - The FTR currently limits the MEA to expenses related to discontinuing or establishing a residence. The GRAB recommended that this limitation be removed, so that the transferee can use the MEA to cover any expenses that emerge in a relocation, whether they are prior to or after the residence transactions. Quoting from the GRAB final report:

          “Currently, the FTR does not provide any reimbursement mechanism for expenses incurred by employees relating to pet care, child care, or adult care for aging parents who are dependents of the relocating employee. The employee typically incurs these costs while taking a househunting trip. Additionally, employees are “challenged” as the FTR does not provide for any reimbursement for children to accompany the employee on a househunting trip.”

        Much like the lump-sum househunting payments mentioned above, the employee would be free to use his or her judgment to make sure the money is used wisely. In private industry, such payments are used to give transferees monies to handle their needs without having to voucher for reimbursement. This proposal also eliminates the need for the Government from having to specify what is covered by the MEA.
        A standard payment for private industry is based on a month’s salary. At this time, the MEA payment to Federal employees remains legally limited to one or two week’s salary for a GS-13 step 10, depending on family status. GSA is planning to address this limitation in a legislative proposal.
        C. Changes to Current FTR
        This proposed rule—
        • Adds definitions for amended value sale, appraised value sale, buyer’s value option, fair market value and relocation services companies in section 300-3.1.
        • Amends Table B, in section 302-3.2.
        • Amends Table H, in section 302-3.101.
        • Amends section 302-5.13 to make the standard CONUS rate the operative per diem for calculating actual expense househunting trips per diems and clarifies the availability and use of lump-sum reimbursements.
        • Amends section 302-7.8 to limit household goods (HHG) storage to 60 days with a possible 30-day extension for CONUS to CONUS moves and keeps the 90 days with a possible 90-day extension for moves that have an authorized non-CONUS origin and/or destination.
        • Amends section 302-12.3 to require that the employee’s residence, if unsold after 30 days at a price set by the employee, be listed at a price no more than 105% of the appraised value for 30 days when an RSC is used and to require the employee to attend relocation counseling sessions.

        • Amends sections 302-12.105 and 302-12.106 to require the agencies that use a homesale program to administer it in a manner that will drive the programs towards the buyer value option and amended sales, and away from appraised value sales.
        • Amends sections 302-16.1 and 302-16.2 to remove the connection between the miscellaneous expense allowance and the establishment and disestablishment of a residence and switches the order of the two sections to make a better logical point.
        D. Executive Order 12866
        This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that Executive Order.
        E. Regulatory Flexibility Act
        This proposed rule is not required to be published in the Federal Register for notice and comment as per the exemption specified in 5 U.S.C. 553(a)(2); therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., does not apply.
        F. Paperwork Reduction Act

        The Paperwork Reduction Act does not apply because the proposed changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

        G. Small Business Regulatory Enforcement Fairness Act

        This proposed rule is also exempt from congressional review prescribed under 5 U.S.C. 801 et seq., since it relates solely to agency management and personnel.

          List of Subjects in 41 CFR Parts 300-3, 302-3, 302-5, 302-7, 302-12, and 302-16
          Government employees, Travel and transportation expenses.

          Dated: June 19, 2007.
          Kevin Messner,
          Acting Associate Administrator.

        For the reasons set forth in the preamble, under 5 U.S.C. 5701-5709, GSA proposes to amend 41 CFR parts 300-3, 302-3, 302-5, 302-7, 302-12, and 302-16 as set forth below:

          PART 300-3—GLOSSARY OF TERMS

        1. The authority citation for 41 CFR part 300-3 continues to read as follows:

          Authority:
          5 U.S.C. 5707; 40 U.S.C. 121(c); 49 U.S.C. 40118; 5 U.S.C. 5738; 5 U.S.C. 5741-5742; 20 U.S.C. 905(a); 31 U.S.C. 1353; E.O. 11609; 36 FR 13747; 3 CFR, 1971-1975 Comp., p. 586, Office of Management and Budget Circular No. A-126, “Improving the Management and Use of Government Aircraft.” Revised May 22, 1992.

        2. Amend § 300-3.1 by adding alphabetically the terms and definitions “Amended Value Sale”, “Appraised Value Sale”, “Buyer’s Value Option (BVO)”, “Fair Market Value” and “Relocation Service Company (RSC)” to read as follows:

          § 300-3.1
          What do the following terms mean?

          Amended Value Sale-A residential sale where a bona fide outside offer to buy a residence is accepted by a relocation services company. This offer can be equal to or higher than the guaranteed offer. If the contract is acceptable, the RSC will sign the contract and amend its guaranteed offer to reflect the new value based on the higher sales price. The RSC will then disburse the transferee’s equity (or remaining equity if a portion had been disbursed earlier) based upon this amended value, complete the acquisition of the property, and resell the home to the outside buyer. Amended value sales are often called “amend from zero” sales with the RSC guaranteed offer being the baseline from which the amendments are made.

          Appraised Value Sale-A residential sale where two or more independent appraisers set the price for a guaranteed offer for the purchase of a residence. Under this option, once a transferee’s home is placed in the homesale program, a relocation services company (RSC) makes a guaranteed offer for the transferee’s home based on the fair market value established by independent appraisers. The offer is guaranteed for a contract specified number of calendar days. If the transferee accepts the guaranteed offer within the time period, the RSC purchases the home, takes the home into its inventory, and disburses the transferee’s equity (or remaining equity if a portion had been disbursed earlier) based upon the offer. It is then the RSC’s responsibility to sell the home, and the agency pays the RSC a fee that covers the closing costs, other expenses, and the risk that the RSC may lose money on the resale of the home.

          Buyer Value Option (BVO)-A residential sale in which a transferee in consultation with a broker sets the initial asking price and sells through the relocation services company (RSC) for an acceptable outside offer. If the transferee receives an offer from an outside buyer acceptable to the RSC, the RSC buys the home from the transferee at that price, disburses the equity (or remaining equity if a portion had been disbursed earlier) and then immediately re-sells it to the outside buyer; the agency pays the RSC a fee that covers the closing costs and other RSC expenses. If, on the other hand, the transferee does not receive an acceptable offer within, for example, 30 days, then the home is placed in the homesale program and the RSC proceeds with the appraised value option.

          Fair Market Value-The price at which a property would most likely sell if placed on the market for a reasonable period of time. It is the most likely price that a well-informed buyer would pay and a well-informed seller would agree to accept for a given property if the property were placed on the market for a reasonable period of time.

          Relocation Service Company (RSC)-A third party vendor under contract with an agency to assist a transferred employee in relocating to the new official station. Examples of the assistance include, but are not limited to: homesale programs, home marketing assistance, home finding assistance, and property management services.

          PART 302-3—RELOCATION ALLOWANCE BY SPECIFIC TYPE

        3. The authority citation for 41 CFR part 302-3 continues to read as follows:

          Authority:
          5 U.S.C. 5738; 20 U.S.C. 905(a).

          § 302-3.2
          [Amended]

        4. Amend § 302-3.2, Table B, Column 2, by removing entries “3” and “4”.

          § 302-3.101
          [Amended]

        5. Amend § 302-3.101, Table H, by redesignating entry “5” in Column 1 as new entry “3” in Column 2; and in Column 1, redesignating entry “6” and entry “7” as new entry “5” and new entry “6” respectively.

          PART 302-5—ALLOWANCE FOR HOUSEHUNTING TRIP EXPENSES

        6. The authority citation for 41 CFR part 302-5 continues to read as follows:

          Authority:
          5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1973 Comp., p. 586.
          7. Amend § 302-5.13 by revising the table to read as follows:

          § 302-5.13
          What methods may my agency use to reimburse me for househunting trip expenses?

              For
              You are reimbursed

              You and/or your spouse's transportation expenses.
              Your actual transportation costs.

              You and/or your spouse's subsistence expenses.

              (a) A per diem allowance at the standard CONUS rate (see http://www.gsa.gov/perdiem), for you and/or your spouse (i.e., if you both go together; or if you go separately, the standard CONUS rate multiplied by 2), for the 10 days or less that your agency authorizes for you; or

              (b) Only if offered by your agency and chosen by you, a lump sum, which is dependent upon spousal participation, as follows:

              (1) If you go and your spouse does not, or if your spouse goes and you do not, multiply the applicable locality per diem rate by 5.00 (see http://www.gsa.gov/perdiem).

              (2) If you and your spouse both go, together or separately, multiply the applicable locality per diem rate by 6.25 (see http://www.gsa.gov/perdiem).

          Part 302-7—TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS AND PROFESSIONAL BOOKS, PAPER, AND EQUIPMENT (PBP&E)
          8. The authority citation for 41 CFR part 302-7 continues to read as follows:

            Authority:
            5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1973 Comp., p.586.
            9. Revise § 302-7.8 to read as follows:

            § 302-7.8
            What are the time limits for the temporary storage of authorized HHG shipments?
            (a) For CONUS to CONUS shipments, the initial period of temporary storage at Government expense may not exceed 60 days. You may request additional time, up to a maximum of 30 days; such a request must be approved by the agency official designated for such requests. Under no circumstances may temporary storage at Government expense for CONUS to CONUS shipments exceed a total of 90 days.
            (b) For shipments that include an OCONUS origin or destination, the initial period of temporary storage at Government expense may not exceed 90 days. You may request additional time, up to a maximum of 90 days; such a request must be approved by the agency official designated for such requests. Under no circumstances may temporary storage for shipments at Government expense that include an OCONUS origin or destination exceed a total of 180 days.
            (c) For all shipments, your HHG may be placed in temporary storage at origin, in transit, at destination, or any combination of these, so long as storage at Government expense does not exceed the applicable time limit.

          PART 302-12—USE OF A RELOCATION SERVICES COMPANY
          10. The authority citation for 41 CFR part 302-12 continues to read as follows:

            Authority:
            5 U.S.C. 5738 and 20 U.S.C. 905(c).
            11. Amend § 302-12.3 by removing “and” in paragraph (b), redesignating paragraph (c) as paragraph (f), and adding new paragraphs (c), (d), and (e) to read as follows:

            § 302-12.3
            Under what conditions may I use a relocation services company?

            (c) Agree that once an RSC presents a guaranteed offer through a home buyout program, you must list your residence on the market to the public for 30 days, at a price of no more than 105% of the guaranteed offer;
            (d) Agree that if you receive a bona fide offer from an outside buyer that is at or above the guaranteed offer and acceptable to the RSC, you may take the Amended Value sale option;
            (e) Attend homesale marketing counseling sessions provided by the chosen RSC; and

            12. Revise § 302-12.105 to read as follows:

            § 302-12.105
            How must we administer a relocation services contract?
            If you have a relocation services contract you must:
            (a) Administer your homesale program to give first consideration towards the use of the buyer’s value option (BVO).
            (b) Administer your homesale program to give second consideration to amended value sales.
            (c) Monitor costs and make adjustments as necessary to ensure that your homesale program continues to provide the best possible value to the Government, considering costs, employee morale and mobility, and other relevant considerations.
            13. Amend § 302-12.106, by removing “and” in paragraph (c), redesignating paragraph (d) as paragraph (e), and adding a new paragraph (d) to read as follows:

            § 302-12.106
            What policies must we establish when offering our employees the services of a relocation services company?

            (d) How you monitor and balance between the three kinds of homesale programs (appraised value, buyer’s value option, and amended value); and

          PART 302-16—ALLOWANCE FOR MISCELLANEOUS EXPENSES
          14. The authority citation for 41 CFR part 302-16 continues to read as follows:

            Authority:
            5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, 36 FR 13747, 3 CFR, 1971-1975 Comp., p. 586.

            §§ 302-16.1 and 302-16.2
            [Redesignated as §§ 302-16.2 and 302-16.1]
            15. Redesignate §§ 302-16.1 and 302-16.2 as §§ 302-16.2 and 302-16.1 respectively; and revise newly redesignated §§ 302-16.1 and 302-16.2 to read as follows:

            § 302-16.1
            What is the purpose of the miscellaneous expenses allowance (MEA)?

            The miscellaneous expenses allowance (MEA) is to help defray some of the costs incurred due to relocating. (See part 302-10 of this chapter for specific costs normally associated with relocation of a mobile home dwelling that are covered under transportation expenses.)

            § 302-16.2
            What are miscellaneous expenses?
            Miscellaneous expenses are:
            (a) Costs associated with relocating that are not covered by other relocation benefits of chapter 302.
            (b) Expenses allowable under this section including, but not limited to the following:

                General Expenses
                Fees/Deposits
                Losses

                Appliances
                Fees for disconnecting/connecting appliances, equipment, or conversion of appliances for operation on available utilities

                Rugs, draperies, and curtains
                Fees for cutting and fitting such items when they are moved from one residence quarters to another

                Utilities (For mobile homes, see § 302-10.204)
                Deposits or fees not offset by eventual refunds.

                Medical, dental, and food locker contracts

                Losses that cannot be recovered by transfer or refund and are due to early termination of a contract.

                Private Institutional care contracts (such as that provided for handicapped or invalid dependents only)

                Losses that cannot be recovered by transfer or refund and are due to early termination of a contract.

                Privately-owned vehicles
                Registration, Driver’s license, and use taxes imposed when bringing into certain jurisdictions.

                Transportation of pets
                The only costs included are those normally associated with transportation and handling of dogs, cats, and other house pets, as well as costs due to stringent air carrier rules. Inoculations, examinations, and boarding quarantine costs are excluded. Also excluded are costs associated with large or exotic animals, costs associated with host country restrictions, and costs arising from special handling difficulties

      [FR Doc. E7-15156 Filed 8-2-07; 8:45 am]
      BILLING CODE 6820-14-S