        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 578
        [Docket No. NHTSA-2007-28445; Notice 1]
        RIN 2127-AK07
        Civil Penalties

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

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          This document proposes to increase the maximum aggregate civil penalties for violations of the odometer tampering and disclosure requirements and certain administrative provisions of the Energy Policy and Conservation Act. This action would be taken pursuant to the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, which requires us to review and, as warranted, adjust penalties based on inflation at least every four years.

          DATES:
          Comments on the proposal are due October 26, 2007.

          Proposed effective date: 30 days after date of publication of the final rule in the Federal Register.

          ADDRESSES:
          You may submit comments [identified by DOT Docket ID Number NHTSA-2007-28445] by any of the following methods:
          If filing comments by September 27, 2007, please use:
          • Web Site: http://dms.dot.gov. Follow the instructions for submitting comments on the Department of Transportation Docket Management System electronic docket site. No electronic submissions will be accepted between September 28, 2007, and October 1, 2007.
          If filing comments on or after October 1, 2007, use:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
          Alternatively, you can file comments using the following methods:
          • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001
          • Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.

            Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://www.dms.dot.gov or http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading below.

            Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

            Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov until September 27, 2007, or the street address listed above. The DOT docket may be offline at times between September 28 through September 30 to migrate to the Federal Docket Management System (FDMS). On October 1, 2007, the internet access to the docket will be at http://www.regulations.gov. Follow the online instructions for accessing the dockets.

          FOR FURTHER INFORMATION CONTACT:
          Michael Kido, Office of Chief Counsel, NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820, 1200 New Jersey Avenue, SE., Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:

        Background
        In order to preserve the remedial impact of civil penalties and to foster compliance with the law, the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990 (28 U.S.C. 2461, Notes, Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L.  104-134) (referred to collectively as the “Adjustment Act” or, in context, the “Act”), requires us and other Federal agencies to adjust civil penalties for inflation. Under the Adjustment Act, following an initial adjustment that was capped by the Act, these agencies must make further adjustments, as warranted, to the amounts of penalties in statutes they administer at least once every four years.

        NHTSA's initial adjustment of civil penalties under the Adjustment Act was published on February 4, 1997. 62 FR 5167. At that time, we codified the penalties under statutes administered by NHTSA, as adjusted, in 49 CFR Part 578, Civil Penalties. On July 14, 1999, we further adjusted certain penalties. 64 FR 37876. In 2000, the Transportation Recall Enhancement, Accountability, and Documentation (“TREAD”) Act increased the maximum penalties under the National Traffic and Motor Vehicle Safety Act as amended (sometimes referred to as the “Motor Vehicle Safety Act”). We codified those amendments in Part 578 on November 14, 2000. 65 FR 68108. On August 7, 2001, we also adjusted certain penalty amounts pertaining to odometer tampering and disclosure requirements and vehicle theft prevention. 66 FR 41149. On September 28, 2004, we adjusted the maximum penalty amounts for a related series of violations involving the agency's provisions governing vehicle safety, bumper standards, and consumer information. 69 FR 57864. On September 8, 2005, the agency adjusted its penalty amounts for violations of its vehicle theft protection standards and those involving a related series of odometer-related violations. 70 FR 53308. Most recently, on May 16, 2006, the agency adjusted its penalty amounts for violations of the Motor Vehicle Safety Act, as amended, and codified amendments made to the Motor Vehicle Safety Act by the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU). 119 Stat. 1144, 1942-43 (Aug. 10, 2005).
        We have reviewed the civil penalty amounts in 49 CFR Part 578 and propose in this notice to adjust certain penalties under the Adjustment Act. Those civil penalties that we are proposing to adjust address penalty amounts pertaining to single violations involving (1) odometer tampering and disclosure and (2) administrative provisions of the automobile fuel economy law.
        Method of Calculation—Proposed Adjustments
        Under the Adjustment Act, we first calculate the inflation adjustment for each applicable civil penalty by arithmetically increasing the maximum civil penalty amount per violation by a cost-of-living adjustment. Section 5(b) of the Adjustment Act defines the “cost-of-living” adjustment as:
        The percentage (if any) for each civil monetary penalty by which —
        (1) The Consumer Price Index for the month of June of the calendar year preceding the adjustment exceeds.
        (2) The Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law.
        Since the proposed adjustment is intended to be effective before December 31, 2007, the “Consumer Price Index [CPI] for the month of June of the calendar year preceding the adjustment” would be the CPI for June 2006.1
           This figure, based on the Adjustment Act's requirement of using the CPI “for all-urban consumers published by the Department of Labor” is 607.8.2
           The penalty amounts that NHTSA proposes to adjust for single violations of both the agency's odometer tampering and disclosure requirements and certain administrative provisions of the Energy Policy and Conservation Act of 1975 as amended and recodified (EPCA), which generally regulates fuel economy, were last set in 1997 based on the Adjustment Act's requirements. The CPI figure for June 1997 is 480.2. Accordingly, the factor that we are using in calculating the proposed increases is 1.27 (607.8/480.2) for both penalty amounts.

            1 We note that in the event that this rule becomes effective in 2008, the agency would use the CPI for June 2007 to calculate this adjustment.

            2 Individuals interested in deriving the CPI figures used by the agency may visit the Department of Labor's Consumer Price Index Home Page at http://www.bls.gov/cpi/home.htm. Scroll down to “Most Requested Statistics” and select the “All Urban Consumers (Current Series)” option, select the “U.S. ALL ITEMS 1967=100—CUUR0000AA0” box, and click on the “Retrieve Data” button.

        Second, using this inflation factor, increases above the current maximum penalty levels are calculated and are then subject to a specific rounding formula set forth in Section 5(a) of the Adjustment Act. 28 U.S.C. 2461, Notes. Under that formula:
        Any increase shall be rounded to the nearest
        (1) Multiple of $10 in the case of penalties less than or equal to $100;
        (2) Multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000;
        (3) Multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000;
        (4) Multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000;
        (5) Multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and
        (6) Multiple of $25,000 in the case of penalties greater than $200,000.
        Change to Maximum Penalty (Single Violation) Under the Odometer Tampering and Disclosure Provision, 49 U.S.C. Chapter 327 (49 CFR 578.6(f)(1))

        The maximum civil penalty for a single violation of the odometer tampering and disclosure statutory provisions or a regulation prescribed thereunder is $2,200, as specified in 49 CFR 578.6(f)(1). See 62 FR 5167. The underlying statutory civil penalty provision is contained in 49 U.S.C. 32709(a). Applying the appropriate inflation factor (1.27) raises the $2,200 figure to $2,794, an increase of $594. Under the rounding formula, any increase in a penalty's amount shall be rounded to the nearest multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000. In this case, the increase would be $1,000. Accordingly, we propose that Section 578.6(f)(1) be amended to increase the maximum civil penalty from $2,200 to $3,200 for a single violation.
        Change to Maximum Penalty (Single Violation) Under the Automobile Fuel Economy Provisions, 49 U.S.C. Chapter 329 (49 CFR 578.6(h)(1))
        The maximum civil penalty for a single violation of certain administrative provisions of EPCA is $11,000, as specified in 49 CFR 578.6(h)(1). See 62 FR 5167. Specifically, Section 578.6(h)(1) applies a maximum penalty of $11,000 for a violation of 49 U.S.C. 32911(a), which applies generally to violations of 49 U.S.C. Chapter 329, excluding 49 U.S.C. 32902 (average fuel economy standards), 32903 (credits for exceeding average fuel economy standards), 32908(b) (fuel economy labeling requirements), 32917(b) (executive agency fleet average fuel economy), and 32918 (retrofit devices). Section 32911(a) applies, for example, to inaccurate reports to NHTSA under 49 U.S.C. 32907 and regulations promulgated thereunder. The underlying statutory civil penalty provision is 49 U.S.C. 32912(a). Applying the appropriate inflation factor (1.27) raises the $11,000 figure to $13,970, an increase of $2,970. Under the rounding formula, any increase in a penalty's amount shall be rounded to the nearest multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000. In this case, the increase would be $5,000. Accordingly, we propose that § 578.6(h)(1) be amended to increase the maximum civil penalty from $11,000 to $16,000 for a single violation.
        Effective Date

        The amendments would be effective 30 days after publication of the final rule in the Federal Register. The adjusted penalties would apply to violations occurring on and after the effective date.
        Request for Comments
        How Do I Prepare and Submit Comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
        Your comments must not be more than 15 pages long (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

        Please submit two copies of your comments, including the attachments, to Docket Management at the beginning of this document, under ADDRESSES. You may also submit your comments electronically to the docket following the steps outlined under ADDRESSES.
        How Can I Be Sure That My Comments Were Received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How Do I Submit Confidential Business Information?

        If you wish to submit any information under a claim of confidentiality, you should submit the following to the Chief Counsel (NCC-110) at the address given at the beginning of this document under the heading FOR FURTHER INFORMATION CONTACT: (1) A complete copy of the submission; (2) a redacted copy of the submission with the confidential information removed; and (3) either a second complete copy or those portions of the submission containing the material for which confidential treatment is claimed and any additional information that you deem important to the Chief Counsel's consideration of your confidentiality claim. A request for confidential treatment that complies with 49 CFR Part 512 must accompany the complete submission provided to the Chief Counsel. For further information, submitters who plan to request confidential treatment for any portion of their submissions are advised to review 49 CFR Part 512, particularly those sections relating to document submission requirements. Failure to adhere to the requirements of Part 512 may result in the release of confidential information to the public docket. In addition, you should submit two copies from which you have deleted the claimed confidential business information, to Docket Management at the address given at the beginning of this document under ADDRESSES.
        Will the Agency Consider Late Comments?

        We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated at the beginning of this notice under DATES. In accordance with our policies, to the extent possible, we will also consider comments that Docket Management receives after the specified comment closing date. If Docket Management receives a comment too late for us to consider in developing the proposed rule, we will consider that comment as an informal suggestion for future rulemaking action.
        How Can I Read the Comments Submitted by Other People?

        You may read the comments received by Docket Management at the address and times given near the beginning of this document under ADDRESSES.
        You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

        (1) Go to the Docket Management System (DMS) Web page of the Department of Transportation (http://dms.dot.gov/).
        (2) On that page, click on “search.”
        (3) On the next page (http://dms.dot.gov/search/), type in the four-digit docket number shown at the heading of this document. Example: if the docket number were “NHTSA-2006-1234,” you would type “1234.”
        (4) After typing the docket number, click on “search.”
        (5) The next page contains docket summary information for the docket you selected. Click on the comments you wish to see.
        You may download the comments. The comments are imaged documents, in either TIFF or PDF format. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically search the Docket for new material.
        Rulemaking Analyses and Notices
        Executive Order 12866 and DOT Regulatory Policies and Procedures
        We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under Executive Order 12866, “Regulatory Planning and Review.” This action is limited to the proposed adoption of adjustments of civil penalties under statutes that the agency enforces, and has been determined to be not “significant” under the Department of Transportation's regulatory policies and procedures.
        Regulatory Flexibility Act
        We have also considered the impacts of this notice under the Regulatory Flexibility Act. I certify that a final rule based on this proposal will not have a significant economic impact on a substantial number of small entities. The following provides the factual basis for this certification under 5 U.S.C. 605(b). The proposed amendments almost entirely potentially affect manufacturers of motor vehicles and motor vehicle equipment.
        The Small Business Administration's regulations define a small business in part as a business entity “which operates primarily within the United States.” 13 CFR 121.105(a). SBA's size standards were previously organized according to Standard Industrial Classification (SIC) Codes. SIC Code 336211 “Motor Vehicle Body Manufacturing” applied a small business size standard of 1,000 employees or fewer. SBA now uses size standards based on the North American Industry Classification System (NAICS), Subsector 336—Transportation Equipment Manufacturing, which provides a small business size standard of 1,000 employees or fewer for automobile manufacturing businesses. Other motor vehicle-related industries have lower size requirements that range between 500 and 750 employees.

        Many small businesses are subject to the penalty provisions of the odometer laws in 49 U.S.C. Chapter 327. Some small businesses are subject to the EPCA provisions in 49 U.S.C. Chapter 329 and therefore may be affected by the adjustments that this NPRM proposes to make. As noted throughout this preamble, this proposed rule would increase only the maximum penalty amounts that the agency could obtain for a single violation of the odometer tampering and disclosure provisions and administrative provisions of EPCA. The proposed rule does not set the amount of penalties for any particular violation or series of violations. Under the odometer laws, the applicable penalty provision requires the agency to take into account the ability to pay and any effect on the ability to continue doing business when determining the appropriate civil penalty in an individual case. See 49 U.S.C. 32709(a)(3)(B). Although EPCA does not provide for consideration of business size, it contains a provision for the compromise or remittitur of penalties for violations of 49 U.S.C. 32911(a). See 49 U.S.C. 32912(a) and 32913(a). The agency would also consider the size of a business under its civil penalty policy when determining the appropriate civil penalty amount for violations of 49 U.S.C. 32701 et seq. or 49 U.S.C. 32911(a). See 62 FR 37115 (July 10, 1997) (NHTSA's civil penalty policy under the Small Business Regulatory Enforcement Fairness Act (SBREFA)). The penalty adjustments that are being proposed would not affect our civil penalty policy under SBREFA.

        Since this proposed regulation would not establish penalty amounts, this proposal will not have a significant economic impact on small businesses.
        Small organizations and governmental jurisdictions would not be significantly affected as the price of motor vehicles and equipment ought not change as the result of this proposed rule. As explained above, this action is limited to the proposed adoption of a statutory directive, and has been determined to be not “significant” under the Department of Transportation's regulatory policies and procedures.
        Executive Order 13132 (Federalism)
        Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation.
        This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The reason is that this proposed rule would apply to motor vehicle manufacturers, and not to the States or local governments. Thus, the requirements of Section 6 of the Executive Order do not apply.
        Unfunded Mandates Reform Act of 1995
        The Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, requires agencies to prepare a written assessment of the cost, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Because this proposed rule will not have a $100 million effect, no Unfunded Mandates assessment will be prepared.
        National Environmental Policy Act
        We have also analyzed this proposed rulemaking action under the National Environmental Policy Act and determined that it would have no significant impact on the human environment.
        Executive Order 12778 (Civil Justice Reform)
        This proposed rule does not have a retroactive or preemptive effect. Judicial review of a rule based on this proposal may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.
        Paperwork Reduction Act
        In accordance with the Paperwork Reduction Act of 1980, we state that there are no requirements for information collection associated with this rulemaking action.

          List of Subjects in 49 CFR Part 578
          Imports, Motor vehicle safety, Motor vehicles, Rubber and Rubber Products, Tires, Penalties.

          PART 578—CIVIL AND CRIMINAL PENALTIES
          In consideration of the foregoing, 49 CFR Part 578 would be amended as set forth below.
          1. The authority citation for 49 CFR Part 578 would continue to read as follows:

            Authority:
            Pub. L. 101-410, Pub. L. 104-134, Pub. L. 106-414, 49 U.S.C. 30165, 49 U.S.C. 30170, 30505, 32308, 32309, 32507, 32709, 32710, 32912, and 33115; delegation of authority at 49 CFR 1.50.

          2. Section 578.6 would be amended by revising paragraphs (f)(1) and (h)(1) to read as follows:

            § 578.6
            Civil penalties for violations of specified provisions of Title 49 of the United States Code.

            (f) Odometer tampering and disclosure. (1) A person that violates 49 U.S.C. Chapter 327 or a regulation prescribed or order issued thereunder is liable to the United States Government for a civil penalty of not more than $3,200 for each violation. A separate violation occurs for each motor vehicle or device involved in the violation. The maximum civil penalty under this paragraph for a related series of violations is $130,000.

            (h) Automobile fuel economy. (1) A person that violates 49 U.S.C. 32911(a) is liable to the United States Government for a civil penalty of not more than $16,000 for each violation. A separate violation occurs for each day the violation continues.

            Issued on: September 21, 2007.
            Anthony M. Cooke,
            Chief Counsel.

      [FR Doc. E7-19019 Filed 9-25-07; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2015-0148; 4500030113]
        RIN 1018-BA86
        Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Headwater Chub and Roundtail Chub Distinct Population Segment

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; withdrawal.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), withdraw the proposed rule to list the headwater chub (Gila nigra) and a distinct population segment (DPS) of the roundtail chub (Gila robusta) from the lower Colorado River basin as threatened species under the Endangered Species Act (Act). This withdrawal is based on a thorough review of the best scientific and commercial data available, which indicate that the headwater chub and the roundtail chub DPS are not discrete taxonomic entities and do not meet the definition of a species under the Act. These fish are now recognized as a part of a single taxonomic species—the roundtail chub (Gila robusta). Because the entities previously proposed for listing are no longer recognized as species, as defined by the Act, we have determined that they are not listable entities and we are withdrawing our proposed rule to add them to the List of Endangered and Threatened Wildlife.
          Section 4(b)(6) of the Act and implementing regulations at 50 CFR 424.17 provide that the Service must, within 1 year of a proposed rule to list, delist, or reclassify species, or to designate or revise critical habitat, withdraw the proposal if the available evidence does not justify the proposed action. The document withdrawing the rule must set forth the basis upon which the proposed rule has been found not to be supported by available evidence. Once withdrawn, the action may not be re-proposed unless sufficient new information is available.

          FOR FURTHER INFORMATION CONTACT:
          Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Office, 9828 North 31st Ave., #C3, Phoenix, AZ 85051-2517; telephone 602-242-0210. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Services at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Previous Federal Action

        On October 7, 2015 (80 FR 60754), we published a proposed rule to list the headwater chub and the lower Colorado River basin roundtail chub DPS (roundtail chub DPS) as threatened species under the Act (16 U.S.C. 1531 et seq.). On August 15, 2016 (81 FR 54018), we announced a 6-month extension on the final listing determination that the Act allows when there is substantial disagreement regarding the sufficiency or accuracy of the available data, and reopened the comment period on the proposed listings for 30 days. During this comment period we received new information. On November 1, 2016 (81 FR 75801), we reopened the comment period on the proposed listings for an additional 45 days to provide the public additional time to review and consider the proposed rulemakings in light of this new information. As a result of the 6-month extension, the deadline to finalize, modify, or withdraw the proposed rule is April 7, 2017.
        For a description of additional previous Federal actions concerning these species, please refer to the October 7, 2015, proposed listing rule (80 FR 60754).
        Background

        At the time we published our proposed rule (October 7, 2015; 80 FR 60754), the Committee on Names of Fishes, a joint committee of the American Fisheries Society and American Society of Ichthyologists and Herpetologists (the Societies) (Page et al. 2013, p. 71), considered headwater chub and roundtail chub to be separate species. As a consortium of fisheries scientists, the American Fisheries Society is the recognized and accepted scientific authority on fish taxonomy. Accordingly, our proposed rule assessed the headwater chub and roundtail chub as separate species. However, commenters on our proposed rule raised questions during the public comment period regarding the taxonomic distinctness of the headwater and roundtail chubs, as related to the Gila chub (Gila intermedia). At that time, some scientists knowledgeable about the fish contended that the three entities were not separate species (Carter et al. 2016 in press; Copus et al. 2016). For this reason, the Arizona Game and Fish Department requested that the Societies evaluate the most recent literature associated with roundtail chub, headwater chub, and Gila chub taxonomy. In their final report to the Arizona Game and Fish Department, the Societies panel concluded that “no morphological or genetic data define populations of Gila in the lower Colorado River basin (which, as defined by the Service, includes the Little Colorado River, Bill Williams River, Gila River, Verde River, and Salt River drainages) as members of more than one species” and “that the data available support recognition of only one species of Gila, the roundtail chub, Gila robusta” (Page et al. 2016, p. 1). These three fish are now considered by the Societies to be a single species, roundtail chub (Gila robusta) because data do not support recognition of three species.
        Taxonomy
        Introduction
        The taxonomic history of the genus Gila in the Colorado River basin has changed over time, especially for the three forms (roundtail, headwater, and Gila chub) found in the Gila River basin. These forms have been variously classified as full species, assigned as different species, subspecies of Gila robusta, or as part of a “Gila robusta complex” (Miller 1945; Holden 1968; Rinne 1969; Holden and Stalnaker 1970; Rinne 1976; Smith et al. 1977; DeMarais 1986; Rosenfeld and Wilkinson 1989; Dowling and DeMarais 1993; Douglas et al. 1998; Minckley and DeMarais 2000; Gerber et al. 2001). As noted by nearly all researchers investigating the systematics of Gila spp., the taxonomic situation is complicated and problematic (Holden and Stalnaker 1970; Minckley 1973; Minckley and DeMarais 2000; Gerber et al. 2001; Schönhuth et al. 2014) due to various factors including multiple independent hybridization events over time (Rinne 1976; DeMarais 1986; Rosenfeld and Wilkinson 1989; DeMarais et al. 1992; Dowling and DeMarais 1993; Minckley and DeMarais 2000; Gerber et al. 2001; Schwemm 2006; Schönhuth et al. 2014; Brandenburg et al. 2015,) potential past introgression (the transfer of genetic information from one species to another as a result of hybridization between them and repeated backcrossing) (DeMarais et al. 1992; Minckley and DeMarais 2000), recent divergence within the three fish (Schwemm 2006). Further, the original assignment to species was based on the assumption that the three fish do not overlap geographically (parapatry), which we recognize now is not an accurate assumption. Additionally, in some instances when the same fish was identified based on morphology (physical characteristics) it was identified as one species and when identified based on genetic analysis it was identified as a different species (Dowling et al. 2015, pp. 14-15). Recent and ongoing genetic and morphologic analyses of chubs in the Gila River basin continue to yield conflicting results (DeMarais et al. 1992; Schwemm 2006; Dowling et al. 2008 and 2015; Schönhuth et al. 2014; Marsh et al. 2016, all entire).
        History

          Gila robusta (roundtail chub) was first described by Baird and Girard (1853, p. 365-369) from specimens collected in 1851 from the Zuni River (tributary to Little Colorado River). Gila nigra (headwater chub; formerly known as G. robusta graham or G. grahami) was first described as a subspecies (G. robusta graham) from Ash Creek in the San Carlos River in east-central Arizona in 1874 (Cope and Yarrow 1875, p. 663), but not returned to full species status (G. robusta) until proposed so by Minckley and DeMarais (2000, p. entire). The Societies accepted Gila nigra as a full species (Nelson et al. 2004, p. 71), as did the New Mexico Department of Game, Fish (Carman 2006, p. 3), Arizona Game, and Fish Department (AGFD 2006, p. 3) and continued to recognize G. robusta as a distinct species. Therefore, based on the best available commercial and scientific data the Service accepted both Gila robusta and Gila nigra as full species as documented in our 12-month findings (May 3, 2006; 71 FR 26007 and July 7, 2009; 74 FR 32352). In their 2013 publication of Common and Scientific Names of Fishes from the United States, Canada, and Mexico, the Societies continued to list both Gila robusta and Gila nigra as distinct species (Page et al. 2013, p. 71). A summary of the historic and current nomenclature from Rinne (1976, entire), Sublette et al. (1990, entire), and Minckley and DeMarais (2000, entire) is summarized in Voeltz (2002, pp. 8) and Copus et al. (2016, pp. 1&6). The Gila chub (Gila intermedia) is currently listed as an endangered species (November 2, 2005; 70 FR 66664).

        These entities were originally classified based on the streams in which they were found (Minckley and DeMarais 2000, p. 252), under the assumption that G. robusta and G. nigra either did not overlap (allopatric, no gene flow) or there was only a narrow overlap (parapatric; limited interaction and opportunity for gene flow) (Minckley and DeMarais 2000 pp. 252-254). Because hybridization between G. robusta and G. intermedia indicates that these fish must co-occur in some streams (Minckley and DeMarais 2000, entire), we conclude that Minckley and DeMarais's (2000) assumption they did not overlap was unfounded. Further, other studies have found that fish designated as G. robusta, G. nigra, and G. intermedia overlap geographically or occur adjacent to one another (Dowling and Marsh 2009, p. 1; Marsh et al. 2016, p. 57; Brandenburg et al. 2015, p. 18).
        Morphology
        The approach for classifying G. robusta, G. nigra, and G. intermedia developed by Minckley and DeMarais (2000, pp. 254-255) presumes there is little intraspecific variation (differences within a species) in the morphologic and meristic (counting quantitative characteristics such as fins) characteristics used to distinguish these three taxa. However, the three purported species overlap in physical characteristics, and many fish have intermediate physical characteristics. Those characteristics that do not overlap are separated by very small margins, making species-level identification of individual fish problematic, even when the geographic origin of the species is known (Brandenburg 2015, entire). Minckley and DeMarais (2000, pp. 253-254) indicate that G. nigra is physically different from G. intermedia even though they appear physically more similar to one another than either is to G. robusta. In addition, Copus et al. (2016, p. 13) did not find physical characteristics in the Minckley and DeMarais (2000, pp. 254-255) classification key to reliably differentiate G. robusta, G. nigra, and G. intermedia from one another. Copus et al. (2016 p. 16) concluded that there was no morphological basis for taxonomic distinctions within the Gila spp. complex.
        Genetics

        Multiple genetic analysis studies have been conducted that reveal differences between different chub populations, but have been unable to identify differences between G. robusta, G. nigra,
          and G. intermedia (DeMarais et al. 1992, pp. 2748-2749; Schwemm 2006, p. 29; Dowling et al. 2008, p. 2, and 2015, p. 13; Copus et al. 2016, pp. 14-15; Marsh et al, 2016, p.58). Mitochondrial DNA analysis (Schönhuth et al. 2014, p. 223) indicates that G. robusta, G. nigra, and G. intermedia belong to one clade (a grouping that includes a common ancestor and all its descendants, living and extinct, of that ancestor). Schönhuth et al. (2014, p. 223) hypothesized that this could reflect hybridization or incomplete lineage sorting (when the lineage of a specific gene is not the same as the lineage of the species, obscuring the true species relationship).

        However, when nuclear DNA (rather than mitochondrial DNA) was analyzed, a broader grouping was identified that included G. seminude and G. elegans, but when mitochondrial and nuclear DNA results are combined G. robusta, G. nigra, and G. intermedia were in one grouping (Schönhuth et al. 2014, p. 223). Preliminary studies by Chafin et al. (2016) indicate evolutionary independent lineages for G. robusta, G. nigra, and G. intermedia, and that the hybrid origin of G. nigra is not supported. Studies by Marsh et al. (2016, entire) point to genetic variation between populations of G. robusta and G. nigra, and demonstrate evidence that distinct ecological differences between some populations are now thought to exist. Minckley and DeMarais (2000, entire) supported recognition of three species, but acknowledged that most genetic variation was within populations for G. robusta, and was among populations for G. intermedia and G. nigra. Minckley and DeMarais (2000, p. 253) also indicated that these three fishes share genetic features (that had been studied so far) while behaving as separate non-overlapping (allopatric) morphological species. In addition, some populations assigned to species based on genetics appeared to conflict with the species level-assignment based on morphology (Dowling et al. 2008, p. 27).
        Speciation

        Minckley and DeMarais (2000, p. 253) describe three different taxonomic options for chubs in the Gila River basin: a single species with many different forms or stages (polymorphic species), a species containing multiple subspecies, or three full species. They acknowledge that none of these taxonomic options is biologically justified without knowing if these fish naturally occur in the same geographic area (sympatry, indicating an initial interbreeding population that split), or occur immediately adjacent to each other but not significantly overlapping (parapatry, indicating there is no barrier to gene flow). They further acknowledge that a persistent narrow interaction zone (parapatry, indicating there is no barrier to gene flow) of morphologically distinguishable G. robusta, G. intermedia, and G. nigra has been confirmed, but note that in no instance was any two of the three caught at the same locality (allopatric, no gene flow; p. 251). However, they also acknowledge that hybridization (between G. robusta and G. intermedia, resulting in G. nigra) in the past must have occurred in some places and not others, thereby demonstrating occurrence in the same geographic area (sympatry) (p. 253). They conversely hypothesized that the current minimal overlap in an area where species are adjacent (parapatry, indicating there is no barrier to gene flow) may thus reflect an ancestral ecological segregation area (sympatry, indicating an initial interbreeding population that split due to the use of different habitats and resources) that promoted persistence in the ever-increasing aridity of the Southwest (p. 253).
        In Fossil Creek, G. nigra and G. robusta appear to be sympatric, including hybrids between G. robusta and G. nigra (Marsh et al. 2016, p. 57). Brandenburg et al. (2015, p. 18) concluded that the morphological assessment of Gila spp. in New Mexico confirmed that the three fish were found in the same geographic area (sympatric) in almost all cases, contradicting Minckley and DeMarais' results (2000, p. 251) as well as other previous literature suggesting that these Gila spp. are occurring in separate non-overlapping geographical areas (allopatric) through their ranges (Rinne 1969, p. entire; DeMarais 1986, p. entire; Minckley and DeMarais 2000, p. 253). In Fossil Creek, they found that G. nigra and G. robusta are locally in the same geographic area (sympatric) and have hybridized (Marsh et al. 2016, p. 57). Marsh et al. (2016, p. 58) concluded there are two morphologically similar, but genetically distinguishable, chub in Fossil Creek, G. robusta and G. nigra.

        Conservation Implications
        Dowling et al. (2015, pp. 14-15) reasoned that the lack of diagnostic molecular characteristics does not inform the status of these three fish, but rather highlights the role that local evolution has played in shaping patterns of variation in these taxa and the importance of accounting for this variation when managing the complex. Most, if not all, scientists agree that conservation actions for these chubs must be directed at the population level and must include consideration of the complex as a whole (Dowling et al. 2008, pp. 30-31; Dowling and DeMarais 1993, p. 445; Gerber et al. 2001, p. 2037; Schwemm et al. 2006, pp. 32-33). The Arizona Game and Fish Department recognizes the importance of conserving the currently recognized roundtail chub population rangewide (including the formerly known headwater chub and Gila chub) and is committed to the conservation agreements and practices that have been in place since 2006 (AGFD 2017, entire; AGFD 2006, entire).
        Public Comments
        In our October 7, 2015 proposed rule (80 FR 60754), we requested that all interested parties submit comments or information concerning the proposed listings during a 60 day comment period, ending December 7, 2015. We particularly sought comments concerning genetics and taxonomy. In our August 15, 2016, 6-month extension document (81 FR 54018), we reopened the comment period on the proposed rule for 30 days, ending September 14, 2016, and we again requested comments and information regarding genetics and morphology that would aid in resolving the ongoing taxonomic issues regarding classification of these fish. On November 1, 2016 (81 FR 75801, we announced an additional 45-day comment period, ending December 16, 2016, on the October 7, 2015 proposed rule.
        We provided notification of these publications and their comment periods through email, letters, and news releases faxed and/or mailed to the appropriate Federal, State, and local agencies; county governments; elected officials; media outlets; local jurisdictions; scientific organizations; interested groups; and other interested parties.
        In accordance with our peer review policy published in the Federal Register on July 1, 1994 (59 FR 34270), we solicited independent opinions from at least three knowledgeable individuals who have expertise with these fish, who possess a current knowledge of the geographic region where the fish occurs, and/or are familiar with the principles of conservation biology.

        We reviewed all comments received from peer reviewers and the public for substantive issues and new information regarding the proposed listing of G. nigra and the G. robusta DPS. Substantive comments pertaining to the taxonomy of these fish received during the comment period are addressed below. We also received several comments from both the public and peer reviewers concerning threats to these fish; however, because our withdrawal is due to taxonomic revision such comments are outside the scope of this withdrawal.
        Peer Review Comments
        (1) Comment: One peer reviewed stated that there are no recent (since 2000) publications in the peer-reviewed literature that provide evidence that Gila intermedia, G. nigra, and G. robusta are other than separate and distinct species. The peer reviewer further stated that there are articles that study the genetics or morphology of these fish without questioning its taxonomy, specifically Schönhuth et al. 2014, Schönhuth et al. 2012, and Marsh et al. in press.

          Response: Multiple studies since 2000 provide information on the genetic analysis for these fish, including Schwemm 2006, Dowling et al. 2008 and 2015, and Copus et al. 2016. While these studies may not have questioned the taxonomic classification, they also have not been able to identify genetic markers that have the ability to distinguish among G. robusta, G. nigra, and G. intermedia. Schönhuth et al. (2008, p. 213; 2014, p. 223), using mitochondrial and nuclear DNA sequencing, found that G. robusta, G. nigra, and G. intermedia were well supported as having a common ancestor. Using mitochondrial DNA, Schönhuth et al. (2008, p. 213; 2014, p. 223) found that G. robusta, G. nigra, and G. intermedia were in one grouping that included a common ancestor and all the descendants (living and extinct) of that ancestor (clade), and this could reflect incomplete lineage sorting or hybridization. However, when nuclear DNA was analyzed, a broader grouping was identified that included G. seminuda and G. elegans, but when mitochondrial and nuclear DNA results were combined, G. robusta, G. nigra, and G. intermedia were alone in one grouping. While Marsh et al. (2016, entire) concluded there are two similar but genetically distinguishable species in the creek they studied, their findings differ somewhat from Schwemm (2006) and Dowling et al. (2008 and 2015, entire), who were unable to conclusively identify distinct species using genetic markers across a much wider range. Further, the Societies conducted a review of the literature and found no evidence to support three species. The Service has reviewed the best available scientific and commercial data and also found a lack of sufficient evidence to support more than one species.
        (2) Comment: Recognized authorities on the taxonomy and ecology of these fish recognized these fish as separate species based on morphological diagnostics.

          Response: Minckley and DeMarais (2000), Miller et al. (2005), and Minckley and Marsh (2009) report identification of three species using a diagnostic morphological key. However, additional reports were unable to reliably identify these three fish to species using the same diagnostic key (Carter et al. 2016, p. 2 and 20, in press; Brandenburg 2015, entire; Copus et al. 2016, p. 13). Further, Minckley and DeMarais (2000, pp. 253-254) stated that G. nigra is morphologically separate from G. intermedia, but that G. nigra and G. intermedia appear morphologically more similar to one another than either is to G. robusta. In addition to issues surrounding morphological identification, multiple genetic analysis studies have found population-level differences, but have been unable to identify genetic markers that have the ability to distinguish among G. robusta, G. nigra, and G. intermedia (DeMarais 1992, pp. 2748-2749; Schwemm 2006, p. 29; Dowling et al. 2008, p. 2, and 2015, p. 13; Copus et al. 2016, pp. 14-15). There are also the findings of Schönhuth et al. (2014), Schönhuth et al. (2012) as described in Response to Comment 1.
        (3) Comment: Conclusions are mainly based on two “gray literature” reports that have not undergone peer review (Copus et al. 2016) or were not available for public consideration (Carter et al. 2016, in press).

          Response: Section 4(b)(1)(A) of the Act requires the Service to make listing or delisting decisions based on the best scientific and commercial data available. Further, our Policy on Information Standards under the Act (July 1, 1994; 59 FR 34271), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (https://www.fws.gov/informationquality), provide criteria and, guidance, and establish procedures to ensure that our decisions are based on the best scientific data available. They require us, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for our determinations. Primary or original information sources are those that are closest to the subject being studied, as opposed to those that cite, comment on, or build upon primary sources. The Act and our regulations do not require us to use only peer-reviewed literature, but instead they require us to use the “best scientific and commercial data available.” We use information from many different sources, including articles in peer-reviewed journals, scientific status surveys and studies completed by qualified individuals, Master's thesis research that has been reviewed but not published in a journal, other unpublished governmental and nongovernmental reports, reports prepared by industry, personal communication about management or other relevant topics, conservation plans developed by States and counties, biological assessments, other unpublished materials, experts' opinions or personal knowledge, and other sources. For these reasons, we think it is appropriate to include review of Copus et al. (2016) and Carter et al. (2016, in press), as well as other sources, within our review.
        (4) Comment: Several authors presented data and conclusions that conflicted with the previously cited Carter et al. (2016, in press) and Copus et al. (2016) reports pertaining to morphological identification, DNA analysis, and ecological equivalency to a subset of the Joint Committee convened in April 2016, to specifically address the taxonomy of the roundtail chub complex.

          Response: We were present at the April 2016 Joint Committee webinar, and experts beyond Carter and Copus, such as Brandenburg, Schwemm, Dowling, O'Neill, and Chafin, also provided information based on research they either had previously conducted or are currently conducting on Gila. A complete list of references cited may be obtained on the Internet at http://www.regulations.gov and upon request from the Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). The Service has reviewed the best available scientific and commercial data and found a lack of sufficient evidence to support more than one species.
        (5) Comment: This taxonomic dispute is not simply an academic exercise of whether to lump or split taxa, because the decision has enormous implications for the conservation of imperiled species. Multiple experts recommended that the roundtail chub complex, however it is constituted, be managed as separate populations or managed as a complex.

          Response: The Service recognizes that multiple experts agree that conservation actions must be directed at the population level and must include consideration of the complex as a whole (Dowling et al. 2008, pp. 30-31; Dowling and DeMarais 1993, p. 445; Gerber et al. 2001, p. 2037; Schwemm 2006, pp. 32-33). However, the Service must adhere to the Act and its implementing regulations, which define a “species” as any species or subspecies of fish, wildlife, or plant, and any distinct population segment of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(16) and 50 CFR 424.02). The best available scientific and commercial data as discussed above in the Taxonomy section, support recognition of only one species, Gila robusta. The Service's withdrawal of our proposed rule to list the headwater and roundtail chub based on new taxonomic classification does not diminish the conservation efforts of our partners to conserve this species and habitat, nor does our decision affect the State's ability to conserve this species under its own authority. The Arizona Game and Fish Department recognizes the importance of conserving the currently recognized roundtail chub population rangewide (including the formerly known headwater chub and Gila chub) and is committed to the conservation agreements and practices that have been in place since 2006 (AGFD 2017, entire; AGFD 2006, entire).
        (6) Comment: Multiple commenters raised concerns with Copus et al. (2016) methods and conclusions, particularly small sample size, lack of key analytical and laboratory steps, the study's DNA sequence data filtering and analyses that failed to follow best practices for phylogenetic analysis, and specimen shrinkage associated with duration of preservation impacting morphological diagnostics.

          Response: The Service did not rely solely on Copus et al. 2016. We considered the best available commercial and scientific data; you may obtain a complete list of references cited on the Internet at http://www.regulations.gov and upon request from the Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). In regards to the mitochondrial DNA and phylogenetic analysis, Copus et al.'s findings are consistent with Schönhuth et al.'s (2014) and Schönhuth et al.'s (2012) mitochondrial DNA and phylogenetic analysis. In addition, multiple genetic analysis studies have been conducted that indicate population-level differences, but do not identify genetic markers that have the ability to distinguish among G. robusta, G. nigra,
          and G. intermedia (DeMarais 1992, pp. 2748-2749; Schwemm 2006, p. 29; Dowling et al. 2008, p. 2, and 2015, p. 13).

        In regards to morphological diagnostic errors due to using preserved specimens, Copus et al. (2016) did use preserved specimens. However, they also analyzed fresh material and concluded that no single diagnostic character can be used for species identification, and with considerable overlap among species in every morphological character, no suite of characters can distinguish species unambiguously (Copus et al. 2016, p. 13). Brandenburg et al. (2015, entire) also reported overlap in the meristic and morphometric characteristics, records of many individual fish with intermediate physical characteristics, and even those characters that do not overlap are separated by very small margins making species-level identification of individual fish problematic, even when the geographic origin of the species is known.
        Public Comments
        (7) Comment: Multiple commenters requested various listing alternatives under the Act including: List G. robusta as threatened and encompass all populations of the chub complex within the Gila basin requiring a revision of the recovery plan, list G. robusta and G. nigra as threatened and retain the current endangered species status of G. intermedia, list G. robusta as threatened and retain the current endangered species status of G. intermedia, or other combinations.

          Response: The Service must adhere to the Act and its implementing regulations, which define a “species” as any species or subspecies of fish, wildlife, or plant, and any distinct population segment of any vertebrate species which interbreeds when mature (16 U.S.C. 1532(16) and 50 CFR 424.02), and based on our review, the best available scientific and commercial data support recognition of only one species, Gila robusta. As the headwater chub and roundtail chub DPS no longer meet the definition of a “species” under the Act, we must withdraw our proposed rule to list them as threatened species.
        (8) Comment: Multiple commenters stated that there is a great amount of morphological overlap among counts and measures for these chub taxa and that this has long been recognized. If a taxonomic key is not 100 percent correct, that does not necessarily mean that these are not taxa that are biologically distinct at the specific level. A test of the key would require the a priori identification of each individual to species. Rather than dismiss the species' taxonomic status, biologists should be working to make a better key that can be used in the field for the effective identification and management of the species.

          Response: We recognize that diagnostic keys do not produce correct results all the time, whether due to human error or morphological similarities among purported species. However, Copus et al. (2016, p. 13) concluded that, based on genetic analysis, no single diagnostic character can be used for species identification, and with considerable overlap among species in every morphological character, no suite of characters can distinguish species unambiguously. Brandenburg et al. (2015, entire) also reported overlap in the meristic and morphometric characteristics, and there are many individual fish whose morphology resides on an intermediate spectrum, and even those characters that do not overlap are separated by very small margins, making species-level identification of individual fish problematic, even if the geographic origin of the species is known. In regards to a priori identification of fish, assignment to species has been based on the stream in which the fish occurs (Minckley and DeMarais 2000, p. 252), so the identification of the fish that occurs in each stream is assumed to be known. Consequently, there exists the ability to compare findings from the diagnostic key to the fish within a particular stream. An updated key may be prudent; however, the Service must use the best available scientific and commercial data available, and we have concluded from our review that the data currently support only one species, Gila robusta. Further, given the overlap in diagnostic characteristics, the development of a valid key seems unlikely.
        (9) Comment: Multiple commenters stated that it has long been hypothesized that G. nigra formed as the result of hybridization between the other two taxa, so we would expect the greatest morphological overlap from that species with the other two taxa. The question then becomes, is G. nigra continuing to differentiate from ancestral G. robusta? When in sympatry, G. nigra and G. robusta are becoming increasingly reproductively isolated from one another (Desert Fishes Council meeting, Dowling et al. 2016).

          Response: We recognize that multiple studies have indicated that hybridization has occurred among G. intermedia and G. robusta resulting in G. nigra and that continuing evolution may occur (Schwemm 2006; Dowling et al. 2008, entire). However, there has also been information presented showing no evidence of the hybrid origin of G. nigra, and that G. intermedia and G. nigra evolved separately in non-overlapping areas (parapatry) (Chafin 2016, entire). In addition, past research (Dowling et al. 2008, 2015; Schwemm 2006) indicate that there is more variation among populations and unique genetics within specific populations (streams).
        (10) Comment: If only G. robusta and G. intermedia are evaluated, there is no question that they would be considered distinct morphological species.

          Response: Carter et al. (2016, in press) found that the physical characteristics did not reliably differentiate among G. robusta, G. intermedia, and G. nigra. In addition, Brandenburg et al. (2015, pp. 8-9) found physically similarity of the three species, as numerous individuals exhibited intermediate characters along the species gradient. The discriminant function analysis (a statistical analysis tool to determine which variables discriminate between two or more naturally occurring groups) classified only 16 percent (n = 42) of G. intermedia (the fewest) while the majority of the samples were classified as G. robusta (53.2 percent, n = 140), which indicates that the ability to classify these fish correctly to G. intermedia or G. robusta based on physical characteristics was low. Due to the complex genetic makeup and observable characteristics or traits (i.e., physical appearance, behavior, or physiology) of these species, there are some stream locations where we do not know where the geographic overlap of headwater, roundtail, and, in some cases Gila chub, begins and ends, because of the plasticity of observable characteristics or traits of these fish within individual streams. Our review of the data does indicate that there are differences in observable characteristics or traits between the fish in different streams, but the Societies' review, as well as the Service review, of the best available scientific and commercial data did not result in a species-level differentiation between G. robusta and G. intermedia, or among G. robusta, G. intermedia, and G. nigra.

        (11) Comment: One commenter recommend that we proceed with an amended recovery plan to list the status of this species as threatened under the Act. The listing of this species is necessary even if all populations of G. intermedia and G. nigra are subsumed into G. robusta.

          Response: An assessment of the entire range of the new taxonomic group of roundtail chub is planned. We are initiating a status review of the new taxonomic entity in 2 to 4 years. Following that review, we will take action as appropriate.
        Determinations
        An entity may only be listed under the Act if that entity meets the Act's definition of a species. The recent report by the Societies indicates that neither the headwater chub nor the roundtail chub can be considered species, as defined by the Act. Under section 3 of the Act (16 U.S.C. 1532(16)) and associated implementing regulations at 50 CFR 424.02, a “species” is defined to include any species or subspecies of fish, wildlife, or plant, and any distinct population segment of any vertebrate species which interbreeds when mature. The Act's implementing regulations at 50 CFR 424.11(a) and the Service Director's November 25, 1992, “Taxonomy and the Endangered Species Act” Memorandum (Memo) provide additional guidance on how to consider taxonomic information when assessing a species for listing under the Act. The regulations at 50 CFR 424.11(a) state, “In determining whether a particular taxon or population is a species for the purposes of the Act, the Secretary [of the Interior] shall rely on standard taxonomic distinction and the biological expertise of the Department [of the Interior] and the scientific community concerning the relevant taxonomic group.” The Director's Memo specifies that the Service is “required to exercise a degree of scientific judgment regarding the acceptance of taxonomic interpretations, particularly when more than one possible interpretation is available. The Memo further states, “When informed taxonomic opinion is not unanimous, we evaluate available published and unpublished information and come to our own adequately documented conclusion regarding the validity of taxa.”

        The Act requires that we finalize, modify, or withdraw the proposed rule within 12 months. The Act provides for one 6-month extension for scientific uncertainty, which we have used. As such, we are required to make a decision regarding the entities' eligibility for listing at this time. In addition, section 4(b)(1)(A) of the Act requires the Service to make listing or delisting decisions based on the best scientific and commercial data available. Further, our Policy on Information Standards under the Act (July 1, 1994; 59 FR 34271), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines (https://www.fws.gov/informationquality), provide criteria, guidance, and establish procedures to ensure that our decisions are based on the best scientific data available. They require us, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations. Primary or original information sources are those that are closest to the subject being studied, as opposed to those that cite, comment on, or build upon primary sources. The Act and our regulations do not require us to use only peer-reviewed literature, but instead they require us to use the “best scientific and commercial data available.” We use information from many different sources, including articles in peer-reviewed journals, scientific status surveys and studies completed by qualified individuals, Master's thesis research that has been reviewed but not published in a journal, other unpublished governmental and nongovernmental reports, reports prepared by industry, personal communication about management or other relevant topics, conservation plans developed by States and counties, biological assessments, other unpublished materials, experts' opinions or personal knowledge, and other sources.

        We conducted a similar internal review of the information presented by and available to the Societies in their review. Our review primarily focused on Marsh et al. (2016), Carter et al. (2016, in press), Copus et al. (2016), Minckley and DeMarais (2000), and Chafin et al. (2015), as well as other literature as discussed above in the Taxonomy section. In their most recent publication of Common and Scientific Names of Fishes (Page et al. 2013, p. 8), the Societies state the following regarding the common process of their naming committee: “In accepting species as valid from various works, we made little or no judgment on authors' species concepts. Taxa of uncertain status were dealt with on a case-by-case basis.” Based on the Societies' expertise and their internal guidance (stated above) on making such decisions, we conclude that the preponderance of evidence before them was clear and decisive enough to make a taxonomic change.

        After reviewing the best available scientific and commercial information (as described above in the Taxonomy section and summarized below) and applying statutory and regulatory guidance, we determined that the Societies' report considered the best commercial and scientific data available. We agree with the conclusion that available data support recognition of only one species, Gila robusta. Our determination is based on various factors, including the method of original assignment to species, hybridization events, conflicting identification of species based on morphology versus genetics, evolutionary history, morphological identification limitations, and lack of genetic markers to identify species. We lack confidence in the initial species assignments to G. robusta, G. nigra, and G. intermedia due to the scientific methods used (fish were assigned to a species based on the stream in which they occurred, the erroneous assumption that these fish did not overlap geographically, and the absence of genetic or morphological diagnostic information). Minckley and DeMarais (2000, entire) based their diagnostic key on the assumption that none of these species occurs in the same locality; however, they acknowledge hybridization among G. robusta and G. intermedia. Further, other studies have found that fish designated as G. robusta, G. nigra, and G. intermedia overlap geographically or occur adjacent to one another (Dowling and Marsh 2009, p. 1; Marsh et al. 2016, p. 57; Brandenburg et al. 2015, p. 18). In addition, some populations appeared to conflict genetically with the species-level assignment based on morphology (Dowling et al. 2015, pp. 14-15). Multiple scientists (as described above) found Minckley and DeMarais's (2000, entire) key for identification of G. robusta, G. nigra, and G. intermedia to not reliably differentiate among these three fish. In Fossil Creek, Marsh et al. (2016, entire) concluded there are two morphologically similar, but genetically distinguishable chub. However, there are several genetic analysis studies indicating population-level differences among these fish, but the studies were not able to identify genetic markers distinguishing between the three fish. Finally, Schönhuth et al. (2014, p. 223) found that G. robusta, G. nigra, and G. intermedia were in one grouping that included a common ancestor and all the descendants (living and extinct) of that ancestor (clade), and hypothesized this could reflect incomplete lineage sorting or hybridization, but this was not studied.

        For the purposes of our determination, we accept the “single species” finding by the Societies described above and, consequently, withdraw the proposed rule to list the headwater chub (Gila nigra) and a DPS of the roundtail chub (Gila robusta) from the lower Colorado River basin as threatened species under the Act. This withdrawal is based on a thorough review of the best scientific and commercial data available, which indicate that the headwater chub and the DPS of the roundtail chub are not discrete taxonomic entities and do not meet the definition of species under the Act. These fish are now recognized as a single taxonomic species—the roundtail chub (Gila robusta). Because the entities previously proposed for listing are no longer recognized as species, as defined by the Act, we have determined that they are not listable entities, and we are withdrawing our proposed rule to list.
        Future Actions

        Following the publication of this withdrawal, we intend to reevaluate the status of the Gila chub (currently listed as endangered) in the near future and initiate a range-wide species status assessment (SSA) of the newly-recognized roundtail chub (Gila robusta).
        References Cited

        A complete list of references cited in this document is available on the Internet at http://www.regulations.gov and upon request from the Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Authors
        The primary authors of this document are the staff members of the Arizona Ecological Services Office.
        Authority

        The authority for this action is section 4(b)(6)(B)(ii) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)

          Dated: March 21, 2017.
          James W. Kurth,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2017-06995 Filed 4-6-17; 8:45 am]
       BILLING CODE 4333-15-P


        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Part 1852
        RIN 2700-AD70
        Award Fee for Service and End-Item Contracts

          AGENCY:
          National Aeronautics and Space Administration.

          ACTION:
          Proposed rule.

          SUMMARY:
          NASA proposes to revise the NASA FAR Supplement (NFS) to update the Award Fee for Service Contracts clause (NFS 1852.216-76) to clarify that the amount of award fee held in reserve, if any, shall not exceed $100,000 for the contract. The purpose of this reserve is to protect the Government's interests relative to an orderly and timely closeout of the contract. In addition, the Award Fee for End Item Contracts clause (NFS 1852.216-77) is being updated to add language similar to that contained in the Award Fee for Service Contracts clause to allow the contracting officer to withhold fee payments, at a not to exceed amount of $100,000 for the contract, to protect the Government's interests relative to an orderly and timely closeout of the contract.

          DATES:
          Interested parties should submit comments to NASA at the address below on or before November 14, 2011 to be considered in formulation of the final rule.

          ADDRESSES:

          Interested parties may submit comments to include any comments relative to the cost associated with complying with this requirement, identified by RIN number 2700-AD70, via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments may also be submitted to Bill Roets, NASA Headquarters, Office of Procurement, Contract Management Division, Washington, DC 20546. Comments may also be submitted by e-mail to william.roets-1@nasa.gov.

          FOR FURTHER INFORMATION CONTACT:

          Bill Roets, NASA, Office of Procurement, Contract Management Division (Suite 5G86); (202) 358-4483; e-mail: william.roets-1@nasa.gov.

        SUPPLEMENTARY INFORMATION:
        A. Background
        In accordance with FAR 16.406(e), the NFS clause 1852.216-76 was created and required for all solicitations and contracts when an award fee contract was contemplated and the contract deliverable was the performance of a service. This clause delineates the award fee evaluation and payment process that will be followed in the contract. NASA is updating this clause to clarify that the amount of withheld award fee shall not exceed $100,000 for the contract revising paragraph (d) of 1852.216-76. As currently written, the clause specifies a not to exceed of 15 percent of the contract's potential award fee, and on large multi-million dollar procurements, this reserve could total millions of dollars which would be excessive for the intended purpose of this reserve. By capping this reserve at $100,000, NASA will set the appropriate maximum dollar amount for this potential reserve and will align this clause with similar language in FAR clauses 52.216-8, Fixed-Fee, and 52.216-10, Incentive Fee.

        Similar language relative to withholding a reserve amount of fee, not to exceed $100,000, to protect the Government's interests relative to an orderly and timely closeout of the contract, is also being added to the Award Fee for End Items clause (NFS 1852.216-77).
        B. 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 rule is not a major rule under 5 U.S.C. 804.
        C. Regulatory Flexibility Act

        NASA certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it merely updates, for clarification purposes, the maximum amount of award fee that can be withheld on a contract which will provide a benefit to all entities both large and small. In addition, award fee contracts are largely the province of large businesses with large dollar contracts and the changes promulgated in this proposed rule do not directly affect the current business processes of Federal contractors.
        D. Paperwork Reduction Act

        The Paperwork Reduction Act (Pub. L. 104-13) is not applicable because the NFS changes do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

          List of Subjects in 48 CFR Part 1852
          Government procurement.

          William P. McNally,
          Assistant Administrator for Procurement.

        Accordingly, 48 CFR part 1852 is proposed to be amended as follows:
        1. The authority citation for 48 CFR part 1852 continues to read as follows:

          Authority:
           42 U.S.C. 2455(a), 2473(c)(1).

          PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          2. Section 1852.216-76 is revised to read as follows:

            1852.216-76
            Award Fee for Service Contracts.
            As prescribed in 1816.406-70(a), insert the following clause:

              AWARD FEE FOR SERVICE CONTRACTS (XX/XX)
              (a) The contractor can earn award fee from a minimum of zero dollars to the maximum stated in NASA FAR Supplement clause 1852.216-85, “Estimated Cost and Award Fee” in this contract.

              (b) Beginning 6* months after the effective date of this contract, the Government shall evaluate the Contractor's performance every 6* months to determine the amount of award fee earned by the contractor during the period. The Contractor may submit a self-evaluation of performance for each evaluation period under consideration. These self-evaluations will be considered by the Government in its evaluation. The Government's Fee Determination Official (FDO) will determine the award fee amounts based on the Contractor's performance in accordance with [identify performance evaluation plan]. The plan may be revised unilaterally by the Government prior to the beginning of any rating period to redirect emphasis.

              (c) The Government will advise the Contractor in writing of the evaluation results. The [insert payment office] will make payment based on [Insert method of authorizing award fee payment, e.g., issuance of unilateral modification by contracting officer].

              (d) The Contracting Officer may direct the withholding of earned award fee payments until a reserve is set aside in an amount that the Contracting Officer considers necessary to protect the Government's interest relative to an orderly and timely closeout of the contract. This reserve shall not exceed 15 percent of the contract's total potential award fee or $100,000, whichever is less.

              (e) The amount of award fee which can be awarded in each evaluation period is limited to the amounts set forth at [identify location of award fee amounts]. Award fee which is not earned in an evaluation period cannot be reallocated to future evaluation periods.
              (f)(1) Provisional award fee payments [insert “will” or “will not”, as applicable] be made under this contract pending the determination of the amount of fee earned for an evaluation period. If applicable, provisional award fee payments will be made to the Contractor on a [insert the frequency of provisional payments (not more often than monthly)] basis. The total amount of award fee available in an evaluation period that will be provisionally paid is the lesser of [Insert a percent not to exceed 80 percent] or the prior period's evaluation score.
              (2) Provisional award fee payments will be superseded by the final award fee evaluation for that period. If provisional payments exceed the final evaluation score, the Contractor will either credit the next payment voucher for the amount of such overpayment or refund the difference to the Government, as directed by the Contracting Officer.
              (3) If the Contracting Officer determines that the Contractor will not achieve a level of performance commensurate with the provisional rate, payment of provisional award fee will be discontinued or reduced in such amounts as the Contracting Officer deems appropriate. The Contracting Officer will notify the Contractor in writing if it is determined that such discontinuance or reduction is appropriate.
              (4) Provisional award fee payments [insert “will” or “will not”, as appropriate] be made prior to the first award fee determination by the Government.
              (g) Award fee determinations are unilateral decisions made solely at the discretion of the Government.
              * [A period of time greater or lesser than 6 months may be substituted in accordance with 1816.405-272(a).]

              (End of clause)

            3. Section 1852.216-77 is revised to read as follows:

            1852.216-77
            Award Fee for End Item Contracts.

            As prescribed in 1816.406-70(b), insert the following clause:

              AWARD FEE FOR END ITEM CONTRACTS (XX/XX)
              (a) The contractor can earn award fee, or base fee, if any, from a minimum of zero dollars to the maximum stated in NASA FAR Supplement clause 1852.216-85, “Estimated Cost and Award Fee” in this contract. All award fee evaluations, with the exception of the last evaluation, will be interim evaluations. At the last evaluation, which is final, the Contractor's performance for the entire contract will be evaluated to determine total earned award fee. No award fee or base fee will be paid to the Contractor if the final award fee evaluation is “poor/unsatisfactory.”

              (b) Beginning 6* months after the effective date of this contract, the Government will evaluate the Contractor's interim performance every 6* months to monitor Contractor performance prior to contract completion and to provide feedback to the Contractor. The evaluation will be performed in accordance with [identify performance evaluation plan] to this contract. The Contractor may submit a self-evaluation of performance for each period under consideration. These self-evaluations will be considered by the Government in its evaluation. The Government will advise the Contractor in writing of the evaluation results. The plan may be revised unilaterally by the Government prior to the beginning of any rating period to redirect emphasis.
              (c)(1) Base fee, if applicable, will be paid in [Insert “monthly”, or less frequent period] installments based on the percent of completion of the work as determined by the Contracting Officer.

              (2) Interim award fee payments will be made to the Contractor based on each interim evaluation. The amount of the interim award fee payment is limited to the lesser of the interim evaluation score or 80 percent of the fee allocated to that period less any provisional payments made during the period. All interim award fee payments will be superseded by the final award fee determination.
              (3) Provisional award fee payments will [insert “not” if applicable] be made under this contract pending each interim evaluation. If applicable, provisional award fee payments will be made to the Contractor on a [insert the frequency of provisional payments (not more often than monthly) basis. The amount of award fee which will be provisionally paid in each evaluation period is limited to [Insert a percent not to exceed 80 percent] of the prior interim evaluation score (see [insert applicable cite]). Provisional award fee payments made each evaluation period will be superseded by the interim award fee evaluation for that period. If provisional payments made exceed the interim evaluation score, the Contractor will either credit the next payment voucher for the amount of such overpayment or refund the difference to the Government, as directed by the Contracting Officer. If the Government determines that (i) The total amount of provisional fee payments will apparently substantially exceed the anticipated final evaluation score, or (ii) the prior interim evaluation is “poor/unsatisfactory,” the Contracting Officer will direct the suspension or reduction of the future payments and/or request a prompt refund of excess payments as appropriate. Written notification of the determination will be provided to the Contractor with a copy to the Deputy Chief Financial Officer (Finance).
              (4) All interim (and provisional, if applicable) fee payments will be superseded by the fee determination made in the final award fee evaluation. The Government will then pay the Contractor, or the Contractor will refund to the Government the difference between the final award fee determination and the cumulative interim (and provisional, if applicable) fee payments. If the final award fee evaluation is “poor/unsatisfactory,” any base fee paid will be refunded to the Government.

              (5) Payment of base fee, if applicable, will be made based on submission of an invoice by the Contractor. Payment of award fee will be made by the [insert payment office] based on [Insert method of making award fee payment, e.g., issuance of a unilateral modification by the Contracting Officer].

              (d) The Contracting Officer may direct the withholding of interim award fee payments until a reserve is set aside in an amount that the Contracting Officer considers necessary to protect the Government's interest relative to an orderly and timely closeout of the contract. This reserve shall not exceed 15 percent of the contracts total potential award fee or $100,000, whichever is less.
              (e) Award fee determinations are unilateral decisions made solely at the discretion of the Government.
              * [A period of time greater or lesser than 6 months may be substituted in accordance with 1816.405-272(a).]

              (End of clause)

      [FR Doc. 2011-23703 Filed 9-14-11; 8:45 am]
      BILLING CODE 7510-01-P


        GENERAL SERVICES ADMINISTRATION
        48 CFR Parts 546 and 552
        [GSAR ANPR 2005-N01]
        General Services Administration Acquisition Regulation; Waiver of Consequential Damages and “Post Award” Audit Provisions (Correction)

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

          ACTION:
          Correction to advance notice of proposed rulemaking and notice of public meeting.

          SUMMARY:

          The General Services Administration (GSA) is requesting comments from both Government and industry on whether the General Services Administration Acquisition Regulation (GSAR) should be revised to include a waiver of consequential damages for contracts awarded for commercial item under the FAR. GSA is also requesting comments on whether “post award” audit provisions should be included its Multiple Award Schedules (MAS) contracts and Governmentwide acquisition contracts (GWACs). The notice published in the Federal Register at 70 FR 12167, March 11, 2005, is amended to extend the public comment date to May 10, 2005, and to allow interested parties to submit presentations by April 7, 2005.

          DATES:

            Comment Date: Interested parties should submit comments on or before May 10, 2005 to be considered in the formulation of a proposed rulemaking.

            Public Meeting Presentation Date: Interested parties may register and submit presentations by April 7, 2005.

          ADDRESSES:
          Submit written comments to: General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
          Submit electronic comments via the Internet to: gsaranpr.2005-N01@gsa.gov

          Submit electronic presentations via the  Internet to: meeting.2005-N01@gsa.gov.

          Please submit comments or presentations only and cite GSAR ANPR 2005-N01 in all correspondence related to this case. All comments received will be posted without change to http://www.acqnet.gov/far/ProposedRules/proposed.htm, including any personal information provided.

            Public Meeting: The public meeting will be conducted at the General Services Administration, National Capital Region, 301 7th and D street, SW., Washington, DC 20407, Auditorium, starting at 9 a.m. to 4 p.m. EST., on April 14, 2005, to ensure open dialogue between the Government and interested parties on this important topic.

            Special Instructions. The submitted presentations will be the only record of the public meeting. If you intend to have your presentation considered as a public comment in the formulation of the proposed rulemaking, the presentation must be submitted separately as a public comment as instructed above.

            Special Accommodations: The public meeting is physically accessible to people with disabilities. Request for sign language interpretation or other auxiliary aids should be directed to Ernest Woodson, at 202-501-3775, at least 5 working days prior to the meeting date.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Ernest Woodson, Procurement Analyst, Contract Policy Division, 202-501-3775.

        SUPPLEMENTARY INFORMATION:
        Background
        Currently, FAR Part 12, Acquisition of Commercial Items, prescribes polices and procedures unique to the acquisition of commercial items under FAR Part 12. FAR Part 12 implements the Government's preference for the acquisition of commercial items as contained in Title VIII of the Federal Acquisition Streamlining Act of 1994 by establishing policies more closely resembling those of the commercial marketplace. The clause, FAR 52.212-4, Contract Terms and Conditions—Commercial Items, that includes terms and conditions applicable to each acquisition procured under FAR Part 12 is, to the maximum extent practicable, consistent with customary commercial practices. The clause includes a provision, FAR 52.212-4(p), Limitation of liability, that provides; “Except as otherwise provided by an express warranty, the Contractor will not be liable to the Government for consequential damages resulting from any defect or deficiencies in accepted items.” Also, FAR 12.302(b) allows the contracting officer to tailor the clause at FAR 52.212-4 to adapt to market conditions of reach commercial acquisition. In addition to the limitation of liability clause and the provision at FAR 12.302, Federal contracts typically include a broad range of standard contract clauses such as warranties and liquidated damages that provide exclusive remedies for nonperformance that limit the Government to the specific remedies set forth in the clause.
        Likewise, the Contract Disputes Act of 1978 provides for the resolution of any failure on the part of the Government and the contractor to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to a Government contract to be a dispute to be resolved in accordance with FAR 52.233-1, disputes.
        Notwithstanding specific adjustments and other remedies provided in Government contracts for contractor deficiencies or nonperformance, concerns have been raised that—
        • FAR clause 52.212-4(p) and the “tailoring” provision at FAR 12.302, do not reach the level of commercial standards and that unlimited consequential or other incidental or special damages are not necessary and are, in fact, counterproductive to efficient procurement, raising costs and establishing barriers to commercial companies considering whether to do business with the Federal Government;
        • Although FAR 12.302 permits contracting officers to tailor the limitation of liability clause at FAR 52.212-4(p), some companies assert that contracting officers are unwilling to do so, leaving contractors with a take-it or leave-it option and contracts that deviate from the commercial marketplace, making contractors in general less willing to sign on to such contracts;
        • The commercial practice, unlike FAR 52.212-4(p), that waives liability for consequential damages resulting from any defect or deficiencies in accepted items, provides for a complete wavier of consequential damages;
        • Contractors would make risk decisions and negotiate Government contracts without having to add an uncertainty premium as to liability protection, if FAR Part 12 were appropriately amended to reflect commercial practices; and
        • Contractors also request that we make the waiver of consequential damages for commercial products and services available under other provisions of the FAR.

        Similarly, the General Accounting Office and periodically GSA's IG raise concerns regarding GSA's right to access and examine contractor records after contract award. GSA's primary vehicle for conducting post-award audits is GSAR 552.215-70, Examination of Records by GSA, that gives the Administrator of GSA, or any duly authorized representative, typically the GSA Inspector General's Office of Audits, access to and the right to examine contractor records relating to over billings, billing errors, compliance with the Industrial Funding Fee (IFF) clause of the contract, and compliance with the Price Reduction Clause under MAS contracts.

        In addition to the GSA Examination of Records clause, GSA may use a number of other authorities to conduct a post-award review of a contractor's records. These other authorities include FAR 52.212-5 which authorizes the Comptroller General of the United States to access and examine a contractor's directly pertinent records involving transactions related to the contract; GSAR 515.209-70(b) that permits a contracting officer to modify the GSA Examination of Records Clause to define the specific area of audit (e.g., the use or disposition of Government-furnished property, compliance with price reduction clause, etc.), and the right of the GSA Inspector General to issue subpoenas for contractor records under the Inspector General Act of 1978.
        Contractors' major concerns with GSA's post-award audit authority include complaints that they are too broad and not consistent with commercial contract practices.
        In consideration of the above concerns, we have questions as to how the taxpayer may benefit from any revisions to the GSAR to address contractor concerns regarding limitation of liability or post-award audits. We are also interested in learning what, if any, impact the Services Acquisition Reform Act of 2002 and 2003 has on the issue of revising the GSAR to address limitations of liability.
        In this advance notice of proposed rulemaking and notice of public meeting, GSA is seeking input from both Government and industry on whether the GSAR should be revised to waive consequential damages in the purchase of commercial items under FAR Parts 12, 13, 14, and 15 and whether GSA should modify its policy and practices with regard to the addition of post award audit clauses into contracts it awards.

          Dated: March 11, 2005.
          David A. Drabkin,
          Senior Procurement Executive, Office of the Chief Acquisition Officer, General Services Administration.

      [FR Doc. 05-5273  Filed 3-16-05; 8:45 am]
      BILLING CODE 6820-61-M