        DEPARTMENT OF VETERANS AFFAIRS
        48 CFR Parts 852 and 873
        RIN 2900-AQ78
        VA Acquisition Regulation: Simplified Procedures for Health-Care Resources

          AGENCY:
          Department of Veterans Affairs.

          ACTION:
          Proposed rule.

          SUMMARY:

          The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove any procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, will publish them in the Federal Register. VA will combine related topics, as appropriate. This rulemaking revises VAAR coverage concerning Simplified Procedures for Health-Care Resources as well as an affected part concerning Solicitation Provisions and Contract Clauses.

          DATES:
          Comments must be received on or before March 22, 2021 to be considered in the formulation of the final rule.

          ADDRESSES:
          Comments may be submitted through www.Regulations.gov or mailed to Mr. Rafael Taylor, (003A2A), Department of Veterans Affairs, Procurement Policy and Warrant Management Services, 425 I Street NW, Room 1064, Washington, DC 20001. Comments should indicate that they are submitted in response to “RIN 2900-AQ78—VA Acquisition Regulation: Simplified Procedures for Health-Care Resources.” Comments received will be available at regulations.gov for public viewing, inspection or copies.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Rafael Taylor, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-2787. (This is not a toll-free number.)

        SUPPLEMENTARY INFORMATION:

        Background
        This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR.
        VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions and removals have been reviewed and concurred with by VA's Integrated Product Team of agency stakeholders.
        The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, and sections.
        The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR.
        When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.
        Discussion and Analysis
        VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authority that are removed from the VAAR will be included in the VAAM as internal departmental guidance. The VAAM is being created in parallel with these revisions to the VAAR and is not subject to the rulemaking process as they are internal VA procedures and guidance. The VAAM will not be finalized until corresponding VAAR parts are finalized, and therefore the VAAM is not yet available online.
        VAAR Part 852—Solicitation Provisions and Contract Clauses
        We are proposing to revise the following provisions to make minor grammatical corrections and to capitalize all principal words in their titles: 852.273-70, Late Offers; 852.273-71, Alternative Negotiation Techniques; 852.273-72, Alternative Evaluation; 852.273-73, Evaluation—Health-Care Resources, and 852.273-74, Award Without Exchanges. The provisions 852.273-71, Alternative Negotiation Techniques, and 852.273-73, Evaluation—Health-Care Resources, are also amended to revise the citation in the first sentence to read “873.110(d).”
        VAAR Part 873—Simplified Procedures for Health-Care Resources
        We propose to modify the title of part 873 by deleting the word “Acquisition” to reflect more accurately the meaning of the statute (38 U.S.C. 8153). The title would then be “Simplified Procedures for Health-Care Resources.” This change avoids any misunderstanding that these acquisitions would be subject to FAR Part 13, Simplified Acquisition Procedures, and the corresponding part 813 in the VAAR.
        We also propose to revise the part 873 authorities to add 38 U.S.C. 8127-8128, VA's unique authority as implemented under the Veterans First Contracting Program.

        We propose to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations, and standards of the executive agency.
        We propose to modify the citation 38 U.S.C. 8153 to 38 U.S.C. 8151-8153 to correctly cite the complete authority of the statute.
        We propose to add the citation of 41 U.S.C. 1121(c)(3) which speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein.
        We also propose to add 41 U.S.C 1303, an updated positive law codification to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA.
        In 873.101, Policy, we propose to revise the single paragraph to explain more clearly the types of health-care resources that may be procured from VA-affiliated institutions under the authority of 38 U.S.C. 7302, and to explain when and how such resources that are commercial services may be procured from sources that are not affiliated with the Department under 38 U.S.C. 7302.
        In 873.102, Definitions, we propose to revise the definition of “Commercial service” to remove the phrase “except construction exceeding $2,000 and architect-engineer services” since it is not a limitation contained in 38 U.S.C. 8153.
        We propose to revise 873.103, Priority sources, by removing the unnecessary phrase “Without regard to FAR 8.002(a)(2)” in the first sentence. We also propose to add a statement regarding the applicability of 38 U.S.C. 8127(d) to this part by inserting a reference to revised policy regarding the priority of AbilityOne covered services as a mandatory source set forth at 808.002 (a)(2) (which implements Pub. L. 116-155, the Department of Veterans Affairs Contracting Preference Consistency Act of 2020). AbilityOne covered services remain a priority source under VAAR part 873 as set forth in 808.002(a)(2). We also propose to insert a reference to 873.107, Socioeconomic programs.
        In VAAR section 873.104, Competition requirements, we propose to clarify that health-care resources may be acquired on a sole source basis from an institution affiliated with the Department under 38 U.S.C. 7302 if the resource is a commercial service, the use of medical equipment or space, or research. Such sole source contracts are not required to be publicized as required by FAR 5.101, nor do they require written justification under 41 U.S.C. 3304(e) or under FAR part 6. It would also clarify that when acquiring health-care resources from institutions or organizations not affiliated with the VA, then the Department shall permit all responsible sources, as appropriate, to submit a bid, proposal, or quotation for the resources to be procured and to provide for the consideration by the Department of bids, proposals, or quotations so submitted. Such actions shall also be publicized as otherwise required by VAAR section 873.108.
        We propose to revise VAAR section 873.105, Acquisition planning, to delete the first paragraph as unnecessary; to redesignate the remaining paragraphs as (a), (b), and (c); to limit the need to assemble an acquisition team to those actions with non-affiliated sources described in VAAR section 873.104(b); and to comply with the requirements of the Veterans First preferences in VAAR subpart 819.70 and section 873.103 when performing market research.
        We propose to revise the title of VAAR section 873.106 to read “Exchanges with industry before receipt of proposals.” We also propose to remove the reference to FAR part 10 as unnecessary, to add a sentence requiring that any exchange of information must be consistent with procurement integrity requirements in FAR 3.104, to replace the name “Central Contractor Registration” with that of the current system, “System for Award Management,” and to require research of the VA's Vendor Information Pages (VIP) database to help identify potential VIP-listed and verified Veteran-owned small business concerns.

        In section 873.107, Socioeconomic programs, we propose to revise and clarify the policy set forth in this section to require implementation of the VA Rule of Two in accordance with VAAR subpart 819.70, and make necessary clarifications regarding priority sources and application of other small business programs. These clarifications and revisions are necessary to fully implement the requirements under various U.S. Federal court cases and new legislation, including the U.S. Supreme Court decision of June 16, 2016, in Kingdomware Technologies, Inc. v. United States, and the recently enacted Public Law 116-155, the Department of Veterans Affairs Contracting Preference Consistency Act of 2020, signed on August 8, 2020.
        We propose to modify section 873.108, Publicizing contract actions, to require publication of only competitive acquisitions, to delete a reference to part 813 to avoid confusion, to remove repetitive language from section 873.104(a), and to make other minor edits.
        In VAAR section 873.109, General requirements for acquisition of health-care resources, we propose to revise the section to conform to the requirement of the deviation “Class deviation from VA Acquisition Regulation (VAAR) 815.303—Responsibilities,” of December 15, 2016, designating the contracting officer to be the Source Selection Authority (SSA) unless the HCA has appointed another person to perform that role; to refer to both Performance Work Statements and Statements of Work when discussing “specifications;” and to correct a cross reference to read “873.111(d)(1)(ii).”
        We propose to revise section 873.110, Solicitation provisions, to capitalize all clauses and provisions referenced in the section; to revise paragraph (a) to clarify the basis for using provision 852.271-70, Late Offers, in solicitations; to correct the reference in (b) to “Alternative Negotiation Techniques” to cite “873.111(d)(1),” and the reference in (c) to “873.111(d)(1)(ii);” to revise paragraphs (d) and (e) to incorporate the appropriate capitalization of the provisions; and to remove from (f) the prescription of clause 852.207-70, Report of Employment Under Commercial Activities, as that clause is obsolete since the A-76 program is not currently effective.
        In section 873.111, Acquisition strategies for health-care resources, we propose to make several minor edits to the text; to remove the opening phrase “Without regard to FAR 13.003 or 13.500(a),” as unnecessary; to insert the acronym “RFQ” and the word “subparts” paragraph (a)(1); to change the spelling of the word “Part” in (a)(2) to lower case; to delete existing paragraph (c) as unnecessary; and to redesignate the remaining paragraphs as (c) and (d).
        We propose to revise section 873.113, Exchanges with offerors, to delete in paragraph (c) the repetitive use of the word “perceived;” and to correct the citation in paragraph (e) to 873.111(d)(1) regarding alternative negotiation techniques.
        We propose to make two minor edits to the last sentence in paragraph (a) in 873.115, Proposal revisions, to insert the word “all” after the word “safeguard” to stress the need for protecting proposals and revisions, and to delete as unnecessary the word “thereto.”

        In section 873.116, Source selection decision, we propose to replace the term “contracting officer” in paragraphs (a) and (b) with “Source Selection Authority” or “SSA” to be consistent with the deviation “Class deviation from VA Acquisition Regulation (VAAR) 815.303—Responsibilities,” of December 15, 2016, and to remove from paragraph (c) the reference to section 815.308 since that section does not exist.
        In section 873.118, Debriefings, we propose to revise the first sentence to read “Offerors whose proposals are not accepted under a competitive request for proposals (RFP) may submit a written request for a debriefing to the contracting officer.” The current language uses non-standard acquisition terms.
        Executive Orders 12866, 13563 and 13771
        Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866.

        VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”
        This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.
        Paperwork Reduction Act
        This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
        Regulatory Flexibility Act
        The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612).
        This rulemaking does not change VA's policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, the proposed rule would not have an economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
        Unfunded Mandates
        The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule will have no such effect on State, local, and tribal Governments or on the private sector.

          List of Subjects
          48 CFR Part 852
          Government procurement, Reporting and recordkeeping requirements.
          48 CFR Part 873
          Government procurement.

        Signing Authority
        The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Brooks D. Tucker, Assistant Secretary for Congressional and Legislative Affairs, Performing the Delegable Duties of the Chief of Staff, Department of Veterans Affairs, approved this document on July 17, 2020, for publication.

          Consuela Benjamin,
          Regulations Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

        For the reasons set out in the preamble, VA proposes to amend 48 CFR parts 852 and 873 as follows:

          PART 852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        1. The authorities for part 852 continue to read as follows:

          Authority:
          38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

          Subpart 852.2—Text of Provisions and Clauses

        2. Section 852.273-70 is revised to read as follows:

          852.273-70
          Late Offers.
          As prescribed in 873.110(a), insert the following provision:

            LATE OFFERS (DATE)
            This provision replaces paragraph (f) of FAR provision 52.212-1, Instructions to Offerors—Commercial Items. Offers or modifications of offers received after the time set forth in a request for quotations or request for proposals may be considered, at the discretion of the Contracting Officer, if determined to be in the best interest of the Government. Late bids submitted in response to an invitation for bid (IFB) will not be considered.

          (End of provision)

        3. Section 852.273-71 is revised to read as follows:

          852.273-71
          Alternative Negotiation Techniques.
          As prescribed in 873.110(b), insert the following provision:

            ALTERNATIVE NEGOTIATION TECHNIQUES (DATE)
            The Contracting Officer may elect to use the alternative negotiation techniques described in 873.111(d) in conducting this procurement. If used, Offerors may respond by maintaining offers as originally submitted, revising offers, or submitting an alternative offer. The Government may consider initial offers unless revised or withdrawn, revised offers, and alternative offers in making the award. Revising an offer does not guarantee an offeror an award.

          (End of provision)

        4. Section 852.273-72 is revised to read as follows:

          852.273-72
          Alternative Evaluation.
          As prescribed in 873.110(c), insert the following provision:

            ALTERNATIVE EVALUATION (DATE)

            (a) The Government will award a contract resulting from this solicitation to the responsible Offeror submitting the lowest priced offer that conforms to the solicitation. During the specified period for receipt of offers, the amount of the lowest offer will be posted and may be viewed by [Contracting Officer insert description of how the information may be viewed electronically or otherwise]. Offerors may revise offers anytime during the specified period. At the end of the specified time period for receipt of offers, the responsible Offeror submitting the lowest priced offer will be in line for award.
            (b) Except when it is determined not to be in the Government's best interest, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are materially unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s).

          (End of provision)

        5. Section 852.273-73 is revised to read as follows:

          852.273-73
          Evaluation—Health-Care Resources.
          As prescribed in 873.110(d), in lieu of FAR provision 52.212-2, the Contracting Officer may insert a provision substantially as follows:

            EVALUATION—HEALTH-CARE RESOURCES (DATE)

            (a) The Government will award a contract resulting from this solicitation to the responsible Offeror whose proposal, conforming to the solicitation, will be most advantageous to the Government, price and other factors considered. The following information or factors shall be used to evaluate offers: [Contracting Officer insert evaluation information or factors, such as technical capability to meet the Government's requirements, past performance, or such other evaluation information or factors as the Contracting Officer deems necessary to evaluate offers. Price must be evaluated in every acquisition. The Contracting Officer may include the evaluation information or factors in their relative order of importance, such as in descending order of importance. The relative importance of any evaluation information must be stated in the solicitation.]
            (b) Except when it is determined not to be in the Government's best interest, the Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. The Government may determine that an offer is unacceptable if the option prices are materially unbalanced. Evaluation of options shall not obligate the Government to exercise the option(s). The Government may reject any or all proposals if such action is in the Government's interest. Additionally, the Government may waive informalities and minor irregularities in proposals received.
            (c) If this solicitation is a request for proposals (RFP), a written notice of award or acceptance of a proposal, mailed or otherwise furnished to the successful Offeror within the time for acceptance specified in the solicitation, shall result in a binding contract without further action by either party. Before the proposal's specified expiration time, the Government may accept a proposal (or part of a proposal), whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received by the Contracting Officer before award.

          (End of provision)

        6. Section 852.273-74 is revised to read as follows:

          852.273-74
          Award Without Exchanges.
          As prescribed in 873.110(e), insert the following provision:

            AWARD WITHOUT EXCHANGES (DATE)
            The Government intends to evaluate proposals and award a contract without exchanges with Offerors. Therefore, each initial proposal should contain the Offeror's best terms from a cost or price and technical standpoint. However, the Government reserves the right to conduct exchanges if later determined by the Contracting Officer to be necessary.

        7. Part 873 is revised to read as follows:

          PART 873—SIMPLIFIED PROCEDURES FOR HEALTH-CARE RESOURCES

            Sec.
            873.101
            Policy.
            873.102
            Definitions.
            873.103
            Priority sources.
            873.104
            Competition requirements.
            873.105
            Acquisition planning.
            873.106
            Exchanges with industry before receipt of proposals.
            873.107
            Socioeconomic programs.
            873.108
            Publicizing contract actions.
            873.109
            General requirements for acquisition of health-care resources.
            873.110
            Solicitation provisions.
            873.111
            Acquisition strategies for health-care resources.
            873.112
            Evaluation information.
            873.113
            Exchanges with offerors.
            873.114
            Best value pool.
            873.115
            Proposal revisions.
            873.116
            Source selection decision.
            873.117
            Award to successful offeror.
            873.118
            Debriefings.

            Authority:
            38 U.S.C. 8127-8128; 38 U.S.C. 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

            873.101
            Policy.
            (a) General. In accordance with 38 U.S.C. 8153, to secure health-care resources which otherwise might not be feasibly available, or to effectively utilize certain other health-care resources, the Department of Veterans Affairs (VA) may make arrangements by contract for the mutual use, or exchange of use, of health-care resources between VA health-care facilities and any health-care provider, or other entity or individual. This part prescribes simplified procedures for contracts with entities not affiliated with VA under 38 U.S.C. 7302 to secure health-care resources that are a commercial service, or the use of medical equipment or space. VA may enter into such a contract if such resources are not, or would not be, used to their maximum effective capacity. (38 U.S.C. 8153)
            (b) Precedence. These procedures shall be used in conjunction with the Federal Acquisition Regulation (FAR) and other parts of the VAAR. However, when a policy or procedure in the FAR or another part of the VAAR is inconsistent with the procedures contained in this part, this part shall take precedence. (38 U.S.C. 8153)

            873.102
             Definitions.

              Commercial service means a service that is offered and sold competitively in the commercial marketplace, is performed under standard commercial terms and conditions, and is procured using firm-fixed price contracts. (38 U.S.C. 8153)

              Health-care providers include health-care plans and insurers and any organizations, institutions, or other entities or individuals who furnish health-care resources. (38 U.S.C. 8153)

              Health-care resource includes hospital care and medical services (as those terms are defined in 38 U.S.C. 1701 and services under sections 1782 and 1783 of this title) any other health-care service, and any health-care support or administrative resource. (38 U.S.C. 8152)

            873.103
            Priority sources.
            Except for the acquisition of covered services available from the Committee for Purchase From People Who Are Blind or Severely Disabled and the AbilityOne Program (see FAR subpart 8.7), there are no priority sources for the acquisition of health-care resources consisting of commercial services or the use of medical equipment or space in accordance with 808.002(a)(2) and 873.107. (38 U.S.C. 8153)

            873.104
            Competition requirements.
            (a) Affiliated institutions. (1) A health-care resource may be acquired on a sole source basis if a commercial service, the use of medical equipment or space, or research, and is to be acquired from an institution affiliated with the VA in accordance with 38 U.S.C. 7302, including medical practice groups and other entities associated with affiliated institutions, blood banks, organ banks, or research centers. (38 U.S.C. 8153(a)(3)(A))
            (2) Acquisitions of health-care resources identified in paragraph (a)(1) of this section are not required to be publicized as otherwise required by 873.108 or FAR 5.101.
            (b) Non-affiliated entities. (1) If the health-care resource required is a commercial service or the use of medical equipment or space, and is to be acquired from an entity not described in paragraph (a)(1) of this section, contracting officers shall permit all responsible sources, as appropriate, to submit a bid, proposal, or quotation for the resource to be procured, and provide for the consideration by VA of bids, proposals, or quotations so submitted. (38 U.S.C. 8153(a)(3)(B))
            (2) Acquisition of health-care resources identified in paragraph (b)(1) of this section shall be publicized as otherwise required by 873.108. Moreover, for any such acquisition described in paragraph (b)(1) of this section to be conducted on a sole source basis, the contracting officer must prepare a justification that includes the information and is approved at the levels prescribed in FAR part 6.303. (38 U.S.C. 8153(a)(3)(D))

            873.105
            Acquisition planning.
            (a) For the acquisition of health-care resources consisting of commercial services or the use of medical equipment or space from non-affiliated institutions as described in 873.104(b), where the acquisition is expected to exceed the simplified acquisition threshold (SAT), an acquisition team must be assembled. The team shall be tailored by the contracting officer for each particular acquisition expected to exceed the SAT. The team should consist of a mix of staff, appropriate to the complexity of the acquisition, and may include fiscal, legal, administrative, and technical personnel, and such other expertise as necessary to assure a comprehensive acquisition plan. The team should include the small business advocate representing the contracting activity or a higher-level designee. At a minimum, the team must include the contracting officer and a representative of the Office of General Counsel and the requesting service. (38 U.S.C. 8153)
            (b) The contracting officer or the acquisition team, as appropriate, must conduct market research, including satisfying the requirements of VAAR 808.002(a)(2) and 873.107, Socioeconomic programs, and a VA Rule of Two determination. It is the responsibility of the contracting officer to ensure the requirement is appropriately publicized and information about the procurement opportunity is adequately disseminated as set forth in 873.107. (38 U.S.C. 8153)
            (c) In lieu of the requirements of FAR part 7 addressing documentation of the acquisition plan, the contracting officer may conduct an acquisition strategy meeting with cognizant offices to seek approval for the proposed acquisition approach. If a meeting is conducted, briefing materials shall be presented to address the acquisition plan topics and structure in FAR 7.105. Formal written minutes—summarizing decisions, actions, and conclusions—shall be prepared and included in the contract file, along with a copy of the briefing materials. (38 U.S.C. 8153)

            873.106
            Exchanges with industry before receipt of proposals.
            (a) Exchange of information among all interested parties involved in an acquisition described in 873.104(b), from the earliest identification of a requirement through release of the solicitation, is encouraged. Any exchange of information must be consistent with procurement integrity requirements in FAR 3.104. The nature and extent of exchanges between the Government and industry shall be a matter of the contracting officer's discretion (for acquisitions not exceeding the simplified acquisition threshold) or the acquisition team's discretion, as coordinated by the contracting officer. (38 U.S.C. 8153)
            (b) Techniques to promote early exchange of information include—
            (1) Industry or small business conferences;
            (2) Public hearings;
            (3) Market research in accordance with FAR 10.002(b), which shall be followed to the extent that the provisions therein would provide relevant information;
            (4) One-on-one meetings with potential offerors;
            (5) Presolicitation notices;
            (6) Draft requests for proposals (RFPs);
            (7) Requests for information (RFIs);
            (8) Presolicitation or preproposal conferences;
            (9) Site visits;
            (10) Electronic notices (e.g., internet); and
            (11) Use of the System for Award Management (SAM) (see http://www.sam.gov/.

            (12) Researching VA's Vendor Information Pages (VIP) database at https://www.vip.vetbiz.va.gov/.

            873.107
            Socioeconomic programs.
            (a) The Veterans First Contracting Program in VAAR subpart 819.70 takes precedence over other small business programs. (38 U.S.C. 8127-8128)
            (b)(1) Except for contract actions subject to 808.002(a)(2), competitive contract actions not otherwise excluded under this part shall be set-aside for VIP-listed service-disabled veteran-owned small business (SDVOSB) concerns or veteran-owned small business (VOSB) concerns if the contracting officer has a reasonable expectation that two or more eligible small business concerns owned and controlled by Veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. (38 U.S.C. 8127-8128)
            (2) The contracting officer shall proceed with the acquisition under the simplified procedures of this part considering priority sources (see 808.008(a)(2) and 873.103) and preferences for other small businesses in accordance with 819.203-70 and 819.7004. (38 U.S.C. 8153)
            (c) Without regard to FAR 13.003(b)(1), 19.203, 19.502, the head of the contracting activity (HCA) may approve a waiver from the requirement for any set-aside for small business participation when a waiver is determined to be in the best interest of the Government. (38 U.S.C. 8153)
            (d) The contracting officer shall ensure priorities for veteran-owned small businesses are implemented within the VA hierarchy of small business program preferences, established by 38 U.S.C. 8127 and 8128, as implemented in VAAR subpart 819.70, the Veterans First Contracting Program. Specifically, the contracting officer shall consider preferences for verified service-disabled veteran-owned small businesses (SDVOSBs) first, then preferences for verified veteran-owned small businesses (VOSBs). These priorities will be followed by preferences for other small business concerns in accordance with FAR 19.203, 819.203-70 and 819.7004. (38 U.S.C. 8153)

            873.108
            Publicizing contract actions.
            (a) All competitive acquisitions under this part, except as provided in paragraph (b) of this section, for dollar amounts in excess of the SAT, shall be publicly announced utilizing a medium designed to permit all responsible sources, as appropriate under the provisions of this part, to submit a bid, proposal, or quotation (as appropriate).
            (1) The publication medium may include the internet, including the Governmentwide point of entry (GPE), and local, regional or national publications or journals, as appropriate, at the discretion of the contracting officer, depending on the complexity of the acquisition.

            (2) Notice shall be published for a reasonable time prior to issuance of a solicitation, depending on the complexity or urgency of the acquisition, in order to afford potential offerors a reasonable opportunity to respond. If the notice includes a complete copy of the RFQ or solicitation, a prior notice is not required, and the RFQ or solicitation shall be considered to be announced and issued at the same time.
            (3) The notice may include contractor qualification parameters, such as time for delivery of service, credentialing or medical certification requirements, small business or other socio-economic preferences, the appropriate small business size standard, and such other qualifications as the contracting officer deems necessary to meet the needs of the Government. (38 U.S.C. 8153)
            (b) The requirement for public announcement does not apply to sole source acquisitions described in 873.104(a). However, as required by 38 U.S.C. 8153(a)(3)(D), acquisitions from an institution not affiliated with the Department in accordance with 38 U.S.C. 7302, if conducted on a sole source basis, must still be justified and publicized (see 873.104(b)(2)). (38 U.S.C. 8153)
            (c) For acquisitions below the SAT, a public announcement is optional. (38 U.S.C. 8153)
            (d) Each solicitation issued under these procedures must prominently identify that the requirement is being solicited under the authority of 38 U.S.C. 8153 and part 873. (38 U.S.C. 8153)

            873.109
            General requirements for acquisition of health-care resources.
            (a) Source selection authority. Unless the head of the contracting activity (HCA) appoints another individual to serve as the Source Selection Authority (SSA), the contracting officer shall be the SSA for acquisitions of health-care resources, consisting of commercial services, or the use of medical equipment or space, utilizing the guidance contained in this part 873. (38 U.S.C. 8153)
            (b) Performance Work Statement/Statement of Work. The performance work statement (PWS) or statement of work (SOW) must define the requirement and should, in most instances, include qualifications or limitations such as time limits for delivery of service, medical certification or credentialing restrictions, and small business or other socio-economic preferences. The contracting officer may include any other such terms as the contracting officer deems appropriate for each specific acquisition. (38 U.S.C. 8153)
            (c) Documentation. Without regard to FAR 13.106-3(b), 13.501(b), or 15.406-3, the contract file must include—
            (1) A brief written description of the procedures used in awarding the contract;
            (2) A written determination that the health-care resources being procured are not otherwise feasibly available or that utilization of such health-care resources is necessary to meet mission requirements;
            (3) Documentation of market research and the results of such research;
            (4) The number of offers received; and
            (5) An explanation, tailored to the size and complexity of the acquisition, of the basis for the contract award decision. (38 U.S.C. 8153)
            (d) Time for receipt of quotations or offers. (1) Without regard to FAR 5.203, contracting officers shall set a reasonable time for receipt of quotations or proposals in the solicitations.
            (2) Without regard to FAR 15.208 or 52.212-1(f), quotations or proposals received after the time set forth in an RFQ or request for proposals (RFP) may be considered at the discretion of the contracting officer if determined to be in the best interest of the Government. Contracting officers must document the rationale for accepting quotations or proposals received after the time specified in the RFQ or RFP. This paragraph (d)(2) shall not apply to RFQs or RFPs if alternative evaluation techniques described in 873.111(d)(1)(ii) are used. This paragraph (d)(2) does not apply to invitations for bid (IFBs). (38 U.S.C. 8153)
            (e) Cancellation of procurements. Any acquisition may be canceled by the contracting officer at any time during the acquisition process if cancellation is determined to be in the best interest of the Government and a memorandum for the record in included in the solicitation file explaining the reasons for the cancellation. (38 U.S.C. 8153)

            873.110
            Solicitation provisions.
            (a) As required in 873.109(d), contracting officers shall set a reasonable time for receipt of quotations or proposals and shall insert the provision at 852.273-70, Late Offers, in all RFQs and RFPs exceeding the micro-purchase threshold. However, this provision shall not be used if the provision 852.273-71, Alternative Negotiation Techniques, is to be used. (38 U.S.C. 8153)
            (b) The contracting officer shall insert a provision in RFQs and solicitations, substantially the same as the provision at 852.273-71, Alternative Negotiation Techniques, when either of the alternative negotiation techniques described in 873.111(d)(1) will be used. (38 U.S.C. 8153)
            (c) The contracting officer shall insert the provision at 852.273-72, Alternative Evaluation, in lieu of the provision at 52.212-2, Evaluation—Commercial Items, when the alternative negotiation technique described in 873.111(d)(1)(ii) will be used. (38 U.S.C. 8153)
            (d) When evaluation information, as described in 873.112, is to be used to select a contractor under a RFQ or RFP for health-care resources consisting of commercial services or the use of medical equipment or space, the contracting officer may insert the provision at 852.273-73, Evaluation—Health-Care Resources, in the RFQ or RFP in lieu of FAR provision 52.212-2. (38 U.S.C. 8153)
            (e) As provided at 873.113(f), if award may be made without exchange with offerors, the contracting officer shall include the provision at 852.273-74, Award Without Exchanges, in the RFQ or RFP. (38 U.S.C. 8153)
            (f) The contracting officer shall insert the FAR clause at 52.207-3, Right of First Refusal of Employment, in all RFQs, solicitations, and contracts issued under the authority of 38 U.S.C. 8151-8153 which may result in a conversion, from in-house performance to contract performance, of work currently being performed by Department of Veterans Affairs employees. (38 U.S.C. 8153)

            873.111
            Acquisition strategies for health-care resources.
            The following acquisition processes and techniques may be used, singly or in combination with others, as appropriate, to design acquisition strategies suitable for the complexity of the requirement and the amount of resources available to conduct the acquisition. These strategies should be considered during acquisition planning. The contracting officer shall select the process most appropriate to the particular acquisition. There is no preference for sealed bid acquisitions. (38 U.S.C. 8153)
            (a) Request for quotations (RFQ). (1) Without regard to FAR subparts 6.1 or 6.2, contracting officers must solicit a sufficient number of sources to promote competition to the maximum extent practicable and to ensure that the purchase is advantageous to the Government, based, as appropriate, on either price alone or price and other factors (e.g., past performance and quality). RFQs must notify vendors of the basis upon which the award is to be made. (see FAR 13.004)

            (2) For acquisitions in excess of the SAT, the procedures set forth in FAR part 13 concerning RFQs may be utilized without regard to the dollar thresholds contained therein. (38 U.S.C. 8153)
            (b) Sealed bidding. FAR part 14 provides procedures for sealed bidding.
            (c) Multiphase acquisition technique. (1) General. Without regard to FAR 15.202, multiphase acquisitions may be appropriate when the submission of full proposals at the beginning of an acquisition would be burdensome for offerors to prepare and for Government personnel to evaluate. Using multiphase techniques, the Government may seek limited information initially, make one or more down-selects, and request a full proposal from an individual offeror or limited number of offerors. Provided that the notice notifies offerors, the contracting officer may limit the number of proposals during any phase to the number that will permit an efficient competition among proposals offering the greatest likelihood of award. The contracting officer may indicate in the notice an estimate of the greatest number of proposals that will be included in the down-select phase. The contracting officer may down-select to a single offeror. (38 U.S.C. 8153)
            (2) First phase notice. In the first phase, the Government shall publish a notice (see 873.108) that solicits responses and that may provide, as appropriate, a general description of the scope or purpose of the acquisition and the criteria that will be used to make the initial down-select decision. The notice may also inform offerors of the evaluation criteria or process that will be used in subsequent down-select decisions. The notice must contain sufficient information to allow potential offerors to make an informed decision about whether to participate in the acquisition. The notice must advise offerors that failure to participate in the first phase will make them ineligible to participate in subsequent phases. The notice may be in the form of a synopsis in the Governmentwide point of entry (GPE) or a narrative letter or other appropriate method that contains the information required by this paragraph. (38 U.S.C. 8153)
            (3) First phase responses. Offerors shall submit the information requested in the notice described in paragraph (d)(2) of this section. Information sought in the first phase may be limited to a statement of qualifications and other appropriate information (e.g., proposed technical concept, past performance information, limited pricing information). (38 U.S.C. 8153)
            (4) First phase evaluation and down-select. The Government shall evaluate all offerors' submissions in accordance with the notice and make a down-select decision. (38 U.S.C. 8153)
            (5) Subsequent phases. Additional information shall be sought in the second phase so that a down-select can be performed or an award made without exchanges, if necessary. The contracting officer may conduct exchanges with remaining offeror(s), request proposal revisions, or request best and final offers, as determined necessary by the contracting officer, in order to make an award decision. (38 U.S.C. 8153)
            (6) Debriefing. Without regard to FAR 15.505, contracting officers must debrief offerors whose proposals are not accepted under a competitive request for proposals (RFP) as required by 873.118. (38 U.S.C. 8153)
            (d) Alternative negotiation techniques. (1) Contracting officers may utilize alternative negotiation techniques for the acquisition of health-care resources. Alternative negotiation techniques may be used when award will be based on either price or price and other factors. Alternative negotiation techniques include but are not limited to:
            (i) Indicating to offerors a price, contract term or condition, commercially available feature, and/or requirement (beyond any requirement or target specified in the solicitation) that offerors will have to improve upon or meet, as appropriate, in order to remain competitive.
            (ii) Posting offered prices electronically or otherwise (without disclosing the identity of the offerors) and permitting revisions of offers based on this information.

            (2) Except as otherwise permitted by law, contracting officers shall not conduct acquisitions under this section in a manner that reveals the identities of offerors, releases proprietary information, or otherwise gives any offeror a competitive advantage (see FAR 3.104). (38 U.S.C. 8153)

            873.112
            Evaluation information.
            (a) Without regard to FAR 15.304—Evaluation factors and significant subfactors (except for 15.304(c)(1) and (c)(3), which do apply to acquisitions under this authority), the criteria, factors, or other evaluation information that apply to an acquisition, and their relative importance, are within the broad discretion of agency acquisition officials as long as the evaluation information is determined to be in the best interest of the Government. (38 U.S.C. 8153)
            (b) Price or cost to the Government must be evaluated in every source selection. Past performance shall be evaluated in source selections for competitive acquisitions exceeding the SAT unless the contracting officer documents that past performance is not an appropriate evaluation factor for the acquisition. (38 U.S.C. 8153)
            (c) The quality of the product or service may be addressed in source selection through consideration of information such as past compliance with solicitation requirements, technical excellence, management capability, personnel qualifications, and prior experience. The information required from quoters, bidders, or offerors shall be included in notices or solicitations, as appropriate. (38 U.S.C. 8153)
            (d) The relative importance of any evaluation information included in a solicitation must be set forth therein. (38 U.S.C. 8153)

            873.113
            Exchanges with offerors.
            (a) Without regard to FAR 15.201 or 15.306, acquisitions generally involve exchanges between the Government and competing offerors. Open exchanges support the goal of efficiency in Government by providing the Government with relevant information (in addition to that submitted in the offeror's initial proposal) needed to understand and evaluate the offeror's proposal. The nature and extent of exchanges between the Government and offerors is a matter of contracting officer judgment. Clarifications, communications, and discussions are not applicable to acquisitions under this part 873. (38 U.S.C. 8153)
            (b) Exchanges with potential offerors may take place throughout the source selection process. Exchanges may start in the planning stages and continue through contract award. Exchanges should occur most often with offerors determined to be in the best value pool (see 873.114). The purpose of exchanges is to ensure there is mutual understanding between the Government and the offerors on all aspects of the acquisition, including offerors' submittals/proposals. Information disclosed as a result of oral or written exchanges with an offeror may be considered in the evaluation of an offeror's proposal. (38 U.S.C. 8153)

            (c) Exchanges may be conducted, in part, to obtain information that explains or resolves ambiguities or other concerns (e.g., perceived errors, omissions, or deficiencies) in an Offeror's proposal. (38 U.S.C. 8153)
            (d) Exchanges shall only be initiated if authorized by the contracting officer and need not be conducted with all offerors. (38 U.S.C. 8153)

            (e) Except for acquisitions based on alternative negotiation techniques contained in 873.111(d)(1), the contracting officer and other Government personnel involved in the acquisition shall not disclose information regarding one offeror's proposal to other offerors without consent of the offeror in accordance with FAR parts 3 and 24. (38 U.S.C. 8153)
            (f) Award may be made on initial proposals without exchanges if the solicitation states that the Government intends to evaluate proposals and make award without exchanges, unless the contracting officer determines that exchanges are considered necessary. (38 U.S.C. 8153)

            873.114
            Best value pool.
            (a) Without regard to FAR 15.306(c), the contracting officer may determine the most highly rated proposals having the greatest likelihood of award based on the information or factors and subfactors in the solicitation. These vendors constitute the best value pool. This determination is within the sole discretion of the contracting officer. Competitive range determinations are not applicable to acquisitions under this part 873. (38 U.S.C. 8153)
            (b) In planning an acquisition, the contracting officer may determine that the number of proposals that would otherwise be included in the best value pool is expected to exceed the number at which an efficient, timely, and economical competition can be conducted. In reaching such a conclusion, the contracting officer may consider such factors as the results of market research, historical data from previous acquisitions for similar services, and the resources available to conduct the source selection. Provided the solicitation notifies offerors that the best value pool can be limited for purposes of making an efficient, timely, and economical award, the contracting officer may limit the number of proposals in the best value pool to the greatest number that will permit an efficient competition among the proposals offering the greatest likelihood of award. The contracting officer may indicate in the solicitation the estimate of the greatest number of proposals that will be included in the best value pool. The contracting officer may limit the best value pool to a single offeror. (38 U.S.C. 8153)
            (c) If the contracting officer determines that an offeror's proposal is no longer in the best value pool, the proposal shall no longer be considered for award. Written notice of this decision must be provided to unsuccessful offerors at the earliest practicable time. (38 U.S.C. 8153)

            873.115
            Proposal revisions.
            (a) The contracting officer may request proposal revisions as often as needed during the proposal evaluation process at any time prior to award from vendors remaining in the best value pool. Proposal revisions shall be submitted in writing. The contracting officer may establish a common cutoff date for receipt of proposal revisions. Contracting officers may request best and final offers n. In any case, contracting officers and acquisition team members must safeguard all proposals and revisions to avoid unfair dissemination of an offeror's proposal. (38 U.S.C. 8153)
            (b) If an offeror initially included in the best value pool is no longer considered to be among those most likely to receive award after submission of proposal revisions and subsequent evaluation thereof, the offeror may be eliminated from the best value pool without being afforded an opportunity to submit further proposal revisions. (38 U.S.C. 8153)
            (c) Requesting and/or receiving proposal revisions does not necessarily conclude exchanges. However, requests for proposal revisions should advise offerors that the Government may make award without obtaining further revisions. (38 U.S.C. 8153)

            873.116
            Source selection decision.
            (a) An integrated comparative assessment of proposals should be performed before source selection is made. The SSA shall independently determine which proposal(s) represents the best value, consistent with the evaluation information or factors and subfactors in the solicitation, and that the prices are fair and reasonable. The SSA may determine that all proposals should be rejected if it is in the best interest of the Government. (38 U.S.C. 8153)
            (b) The source selection team, or advisory boards or panels, may conduct comparative analysis(es) of proposals and make award recommendations, if the SSA requests such assistance. (38 U.S.C. 8153)
            (c) The source selection decision must be documented in accordance with FAR 15.308. (38 U.S.C. 8153)

            873.117
             Award to successful offeror.
            (a) The contracting officer shall award a contract to the successful offeror by furnishing the contract or other notice of the award to that offeror. (38 U.S.C. 8153)
            (b) If a request for proposal (RFP) process was used for the solicitation and if award is to be made without exchanges, the contracting officer may award a contract without obtaining the offeror's signature a second time. The offeror's signature on the offer constitutes the offeror's agreement to be bound by the offer. If a request for quotation (RFQ) process was used for the solicitation, and if the contracting officer determines there is a need to establish a binding contract prior to commencement of work, the contracting officer should obtain the offeror's acceptance signature on the contract to ensure formation of a binding contract. (38 U.S.C. 8153)
            (c) If the award document includes information that is different than the latest signed offer, both the offeror and the contracting officer must sign the contract award. (38 U.S.C. 8153)
            (d) When an award is made to an offeror for less than all of the items that may be awarded and additional items are being withheld for subsequent award, each notice shall state that the Government may make subsequent awards on those additional items within the offer acceptance period. (38 U.S.C. 8153)

            873.118
            Debriefings.
            Offerors whose proposals are not accepted under a competitive request for proposals (RFP) may submit a written request for a debriefing to the contracting officer. Without regard to FAR 15.505, preaward debriefings may be conducted by the contracting officer when determined to be in the best interest of the Government. Post-award debriefings shall be conducted in accordance with FAR 15.506. (38 U.S.C. 8153)

      [FR Doc. 2020-29196 Filed 1-19-21; 8:45 am]
      BILLING CODE 8320-01-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R08-OAR-2013-0801; FRL-9905-24-Region 8]
        Approval and Promulgation of Air Quality Implementation Plans; Colorado; Prevention of Significant Deterioration; Greenhouse Gas Tailoring Rule Revisions

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) is proposing to approve revisions and additions to the Colorado State Implementation Plan (SIP) submitted by the Colorado Department of Public Health and the Environment (CDPHE) to EPA on May 25, 2011. The proposed SIP revision to Colorado Regulation Number 3 and the Common Provisions Regulation addresses the permitting of sources of greenhouse gases (GHGs). Specifically, we propose to approve revisions to Portions of Parts A, B and D of Regulation Number 3 to incorporate the provisions of the Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule. The proposed SIP revisions establish emission thresholds for determining which new stationary sources and modifications to existing stationary sources become subject to Colorado's PSD permitting requirements for their GHG emissions. EPA is proposing to approve the May 25, 2011 SIP revision to the Colorado PSD permitting program as being consistent with federal requirements for PSD permitting. EPA also proposes to approve several grammar and punctuation changes to Regulation Number 3 made by the State and included in the May 25, 2011 submittal. EPA is proposing this action under the Clean Air Act (the Act or CAA).

          DATES:
          Comments must be received on or before February 12, 2014.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R08-OAR-2013-0801, by one of the following methods:
          • Federal Rulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Email: ostendorf.jody@epa.gov.

          • Fax: (303) 312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
          • Mail: Carl Daly, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop St., Denver, Colorado 80202-1129.
          • Hand Delivery: Carl Daly, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop St., Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2013-0801. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information through http://www.regulations.gov or email, if you believe that it is CBI or otherwise protected from disclosure. The http://www.regulations.gov Web site is an “anonymous access” system, which means that EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment along with any disk or CD-ROM submitted. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Jody Ostendorf, Air Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., Denver, Colorado 80202-1129, (303) 312-7814, ostendorf.jody@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Information is organized as follows:
        Table of Contents

          I. Background for Our Proposed Action
          II. History of EPA's GHG-Related Actions
          III. EPA's Analysis of the State's Submittal
          IV. Proposed Action
          V. Statutory and Executive Orders Review

        I. Background for Our Proposed Action

        CAA section 110(a)(2)(C) requires states to develop and submit to EPA for approval into the state SIP preconstruction review and permitting programs applicable to certain new and modified stationary sources of air pollutants. There are three separate programs: PSD, Nonattainment New Source Review (NNSR), and Minor NSR. The PSD program is established in part C of title I of the CAA and applies in areas that meet the National Ambient Air Quality Standards (NAAQS)—“attainment areas”—as well as areas where there is insufficient information to determine if the area meets the NAAQS—“unclassifiable areas.” The NNSR program is established in part D of title I of the CAA and applies in areas that are not in attainment of the NAAQS—“nonattainment areas.” The Minor NSR program (1) addresses construction or modification activities that do not emit, or have the potential to emit, beyond certain major source thresholds and thus do not qualify as “major,” and (2) applies regardless of the designation of the area in which a source is located. EPA regulations governing the criteria that states must satisfy for EPA approval of the NSR programs as part of the SIP are contained in 40 CFR 51.160-51.166.

        On May 25, 2011, Colorado submitted revisions for approval by EPA into the Colorado SIP, including some regulations specific to the Colorado NSR PSD permitting program. For Part A, General Provisions Applicable to Reporting and Permitting, the State added new definitions of GHGs and carbon dioxide equivalent (CO2e), incorporating by reference EPA's global warming potential (GWP) codified via the GHG Mandatory Reporting Rule (Sections I.B.10 and I.B. 23); revise the major source definition so that it applies to regulated NSR pollutants (which includes GHGs) as well as to air pollutants (which does not include GHG), so that GHG is addressed and the definition may be used to establish the mass-based GHG threshold (Section I.B.25.b); and revise annual emission fees to exclude GHGs (Section VI.D). The submittal also adds to Part A a new definition of Subject to Regulation consistent with the “PSD and Title V Greenhouse Gas Tailoring Final Rule” (75 FR 31514, June 3, 2010) hereafter referred to as the “Tailoring Rule” (Section I.B.44). The new definition of Subject to Regulation includes a rescission clause which states, “If there is a change in federal law or the District of Columbia Circuit Court of Appeals or the United States Supreme Court directs or issues an order, which limits or renders ineffective the regulation of GHG emissions at stationary sources under the NSR PSD or Title V provisions of the Federal Act, the regulation of GHG emissions under the corresponding programs in this Regulation Number 3 shall be limited or rendered ineffective to the same extent” (Section I.B.44.f). EPA interprets this clause to mean, 1) Colorado will wait for EPA's timely interpretation of a Court action; and, 2) Colorado will provide public notice of any rescission, based on a letter of clarification submitted to EPA on December 12, 2013.
        In Part B, Construction Permits, the SIP revises the general permitting requirements to authorize the issuance of synthetic minor permits for GHGs if stationary sources choose to seek federally enforceable limits for GHGs, if they would otherwise be subject to PSD or Title V permitting programs (Section II.A.4 and II.A.7). In Part D, Major Stationary Source New Source Review (NSR) and Prevention of Significant Deterioration (PSD), the SIP revises the Definitions of “best available control technology” (BACT), “major modification” and “major stationary source” to use the term “regulated NSR pollutant” for consistency with the Tailoring Rule (Sections II.A.8, II.A.22, II.A.24.a, II.A.24.a.(ii) and II.A.24.b); and revise “NSR Pollutant” to be consistent with EPA's Tailoring Rule (Section II.A.38.e and II.A.38.f).

        The SIP also added definitions to Section I.G. of the Common Provisions Regulation to include “greenhouse gas” and “CO2e,” to be consistent with the federal definitions. Grammatical and punctuation changes to Regulation Number 3 were made by the State throughout Regulation Number 3 as documented in the May 25, 2011 submittal.
        These revisions (1) establish that GHG is a regulated pollutant under Colorado's NSR PSD program, and (2) establish emission thresholds for determining which new stationary sources and modification projects become subject to Colorado's NSR PSD permitting requirements for their GHG emissions consistent with the Tailoring Rule. Today's proposed action presents our rationale for approving these regulations as meeting the minimum federal requirements for the adoption and implementation of NSR PSD SIP permitting programs.
        II. History of EPA's GHG-Related Actions
        This section briefly summarizes EPA's recent GHG-related actions that provide the background for this action. Please see the preambles for the identified GHG-related rulemakings for more information.
        Beginning in 2010, EPA undertook a series of actions pertaining to the regulation of GHGs that established the overall framework for today's proposed action on the Colorado SIP. These actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action,1
           the “Johnson Memo Reconsideration,” 2
           the “Light-Duty Vehicle Rule,” 3
           and the “Tailoring Rule.” 4
           Taken together and in conjunction with the CAA, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they took effect on January 2, 2011, subjected GHGs emitted from stationary sources to PSD requirements; and limited the applicability of PSD requirements to GHG sources on a phased-in basis. EPA took this last action in the Tailoring Rule, which, more specifically, established appropriate GHG emission thresholds for determining the applicability of PSD requirements to GHG-emitting sources.

            1 “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.” 74 FR 66496 (December 15, 2009).

            2 “Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.” 75 FR 17004 (April 2, 2010).

            3 “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.” 75 FR 25324 (May 7, 2010).

            4 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule.” 75 FR 31514 (June 3, 2010).

        At the same time, EPA recognized that many states had approved SIP PSD programs that do apply PSD to GHGs, but that do so for sources that emit as little as 100 or 250 tons per year (tpy) of GHG, and that do not limit PSD applicability to GHGs to the higher thresholds in the Tailoring Rule. Therefore, EPA issued the GHG PSD SIP Narrowing Rule,5
           under which, EPA converted its previous full approval of the affected SIPs, including Colorado's, to a partial approval and partial disapproval, to the extent those SIPs covered GHG-emitting sources below the Tailoring Rule thresholds. EPA based its action primarily on the “error correction” provisions of CAA section 110(k)(6). Many of those states have since submitted SIP revisions that have established the Tailoring Rule thresholds, and EPA has approved those SIP revisions and rescinded the partial disapprovals.

            5 “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting Sources in State Implementation Plans,” 75 FR 82536 (December 30, 2010).

        III. EPA's Analysis of the State's Submittal

        These revisions to Colorado's SIP are necessary because without them, and notwithstanding the GHG PSD SIP Narrowing Rule, PSD requirements would apply, as of January 2, 2011, at the 100- or 250-tpy levels provided under the CAA. This would greatly increase the number of required permits, impose undue costs on small sources and overwhelm Colorado's permitting program. The May 25, 2011 proposed revisions establish thresholds for determining which stationary sources and modification projects become subject to permitting requirements for GHG emissions under Colorado's NSR PSD program. Colorado is currently a SIP-approved state for the PSD program, and has incorporated EPA's 2002 NSR reform revisions for PSD into its SIP.

        Colorado has adopted and submitted regulations that are substantively similar to the federal requirements for the permitting of GHG-emitting sources subject to PSD. The revisions incorporate the Tailoring Rule into Colorado's PSD Permitting Programs, and support synthetic minor permitting at stationary sources seeking federally enforceable limits to avoid major source or major stationary source applicability thresholds specific to GHG. The State revisions add the definitions of GHG, CO2e and subject to regulation, revise the definitions of major source and regulated pollutant, allow for synthetic minor source permitting and make the Tailoring Rule effective January 2, 2011. We propose to conclude that the revisions are consistent with the requirements of 40 CFR 51.166, in particular requirements set out in EPA's final GHG Tailoring Rule, and that the revisions should be approved into Colorado's SIP.
        The cover letter to Colorado's May 25, 2011 submittal identified the specific regulations the State requested that EPA approve into the SIP including grammatical and capitalization changes. The State made these minor changes to Parts A, B, and D of Regulation Number 3. These Parts of Colorado's Regulation Number 3 address the State's permitting and PSD program. However, grammatical changes were also made to Part C of the regulation. Part C is the State's Title V permitting program that is not part of the SIP. Since the State included these non-SIP regulatory changes, EPA is taking no action on changes made to Part C.
        IV. Proposed Action
        EPA proposes to approve the May 25, 2011 submittal for incorporation into the SIP. Specifically, EPA proposes to approve revisions to Regulation Number 3 Parts A, B and D and the Common Provisions Regulation. EPA has made the preliminary determination that these May 25, 2011 revisions are approvable because they were adopted and submitted in accordance with the CAA and EPA regulations regarding PSD permitting for GHGs.
        Minor grammatical and capitalization changes made throughout the May 25, 2011 revisions are proposed for approval. These include minor changes to all sections to the following provisions in Regulation Number 3, Part A, Part B, and Part D. The changes do not revise the regulatory language in Regulation Number 3 and are, therefore, proposed for approval without reference. We are not acting on grammatical revisions to Part C of Regulation Number 3 since this is the State's Title V operating permit program and it is not part of the SIP.
        V. Statutory and Executive Orders Review
        Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law that meets federal requirements and disapproves state law that does not meet federal requirements; when finalized, this action would not impose additional requirements beyond those imposed by state law. For that reason, this action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

        • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

        • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
        • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, and Volatile organic compounds.

          Authority:
           42 U.S.C. 7401 et seq

          Dated: December 20, 2013.
          Howard M. Cantor,
          Acting Regional Administrator, Region 8.

      [FR Doc. 2014-00397 Filed 1-10-14; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 223
        [Docket No.020523130-2130-01; I.D. No. 040102D]
        RIN 0648-AP94
        Listing Endangered and Threatened Wildlife and Designating Critical Habitat; 90-day Finding for a Petition to Reclassify the Northern and Florida Panhandle Subpopulations of the Loggerhead as Distinct Population Segments with Endangered Status and to Designate Critical Habitat

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

          ACTION:
          Notice of petition finding; request for information and comments.

          SUMMARY:

          The National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce, announces the 90-day finding for a petition to reclassify the Northern and Florida Panhandle subpopulations of the loggerhead turtle (Caretta caretta), now listed as threatened throughout their range, as distinct population segments with endangered status and designate critical habitat under the Endangered Species Act of 1973, as amended (ESA).  We find that the petition presents substantial scientific information indicating that the petitioned action may be warranted.
          We are initiating a review of the status of the species to determine whether the petitioned action is warranted.  To ensure a comprehensive review, we are soliciting information and comments pertaining to this species from any interested party.

          DATES:

          Written comments and information related to this petition finding must be received [see ADDRESSES] by August 5, 2002.

          ADDRESSES:

          Written comments and information should be addressed to the Chief, Endangered Species Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD  20910.  Comments may also be sent via fax to 301-713-0376.  Comments will not be accepted if submitted via e-mail or the Internet.  The petition is available for public inspection, by appointment, during normal business hours at the above address.  The petition may also be found at the following website: http://www.nmfs.noaa.gov/prot_res/PR3/Turtles/turtles.html.

          FOR FURTHER INFORMATION CONTACT:
          Barbara Schroeder (ph. 301-713-1401, fax 301-713-0376, e-mail barbara.schroeder@noaa.gov).

        SUPPLEMENTARY INFORMATION:
        Background
        Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531 et seq.) requires us to make a finding as to whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted.  Our implementing regulations (50 CFR 424.14) define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.  In determining whether substantial information exists, we take into account several factors, including information submitted with, and referenced in, the petition and all other information readily available.  To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the Federal Register.  If we find that a petition presents substantial information indicating that the requested action may be warranted, we are also required to conduct a status review of the species.  The determination of whether or not the petition is warranted must be made within one year of the receipt of the petition.
        Analysis of Petition

        On January 14, 2002, we received a petition from the Earthjustice Legal Defense Fund, on behalf of the Turtle Island Restoration Network and the Center for Biological Diversity, requesting that the Northern and Florida Panhandle subpopulations of the loggerhead be reclassified as distinct population segments (see Petition Finding for discussion on distinct population segments) with endangered status throughout their range and that critical habitat be designated.  In addition, the petition requested an emergency rule be issued for the same.

        The petition contains a detailed description of the species legal status, life history parameters, geographic range, population status and trends, and factors contributing to the decline in several subpopulations.  The petition cites key documents recognizing the identification of genetically different loggerhead subpopulations (Turtle Expert Working Group (TEWG) 1998, 2000; NMFS Southeast Fisheries Science Center (SEFSC) 2001).  At least five different subpopulations in the Western North Atlantic and Gulf of Mexico have been identified (NMFS SEFSC 2001).  The subpopulations are divided geographically as follows: (1) A Northern nesting subpopulation, occurring from North Carolina to northeast Florida at about 29° N (approximately 7,500 nests in 1998); (2) a South Florida nesting subpopulation, occurring from 29° N on the east coast to Sarasota on the west coast (approximately 83,400 nests in 1998); (3) a Florida Panhandle nesting subpopulation, occurring at Eglin Air Force Base and the beaches near Panama City, FL (approximately 1,200 nests in 1998); (4) a Yucatán nesting subpopulation, occurring on the eastern Yucatán Peninsula, Mexico (Márquez 1990) (approximately 1,000 nests in 1998) (TEWG 2000); and (5) a Dry Tortugas nesting subpopulation, occurring in the islands of the Dry Tortugas, near Key West, FL (approximately 200 nests per year) (NMFS SEFSC 2001).  Recent fine-scale mitochondrial deoxyribonucleic acid (mtDNA) analysis from Florida rookeries indicate that population separations begin to appear between nesting beaches separated by more than 100 kilometers (62 miles) of coastline that do not host nesting (Francisco et al., 2000).  Tagging studies of nesting females corroborate these findings (Ehrhart 1979, LeBuff 1990) and affirm loggerhead nest site fidelity, with rare exceptions.
        The petition maintains that the Northern subpopulation has declined dramatically over the past 20 years.  The petition refers to nesting trends at Cape Island, SC, and Little Cumberland Island, Georgia -nesting beaches that have been consistently surveyed since the early 1970s.  From 1973 to 1995, nesting at Cape Island declined on average 3.2 percent per year, and from 1964 to 1995, Little Cumberland nesting activity declined at 2.6 percent per year.  Regarding the Florida Panhandle subpopulation, the petition asserts that the population’s small size (less than 1,000 annual nesters) would not withstand catastrophic events and warrants rigorous management.
        The petition asserts that the Northern and Florida Panhandle subpopulations are endangered because they are in imminent danger of extirpation from their ranges and identifies several threats including commercial fishing, coastal development, and pollution.  The petition discusses the significance of the Northern and Florida Panhandle subpopulations and states that if either were extirpated, re-establishment is unlikely and the loss of genetic contribution to the species would be permanent.  The petition also states that the Northern subpopulation produces a higher percentage of male hatchlings and the extirpation of this nesting assemblage would seriously hamper male-mediated gene flow.
        Petition Finding
        Based on the above information and criteria specified in 50 CFR 424.14(b)(2), we find the petitioner presents substantial scientific and commercial information indicating that a reclassification of the Northern and Florida Panhandle loggerhead subpopulations as distinct population segments with endangered status may be warranted.  The ESA defines a “species” as “...any subspecies of fish or wildlife or plants and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”  NMFS and the U.S. Fish and Wildlife Service published a joint policy defining the phrase “distinct population segment” on February 7, 1996 (61 FR 4722).  Three elements are considered in a decision regarding the listing, delisting, or reclassification of a distinct population segment as endangered or threatened under the ESA: discreteness of the population segment in relation to the remainder of the species, significance of the population segment to the species, and conservation status.  Under section 4(b)(3) of the ESA, an  affirmative 90-day finding requires that we commence a status review on the loggerhead turtle.  We are initiating this review and, once it has been completed, a finding will be made as to whether reclassification of the Northern and Florida Panhandle loggerhead subpopulations as distinct population segments with endangered status is warranted, warranted but precluded by higher priority listing actions, or not warranted, as required by section 4(b)(3) of the ESA.
        Designation of critical habitat is not subject to the ESA’s petition provision; however, the ESA requires us to make a critical habitat determination concurrent with listing determinations.  The ESA defines “critical habitat” as “...the specific areas within the geographical area occupied by the species, at the time it is listed... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and... specific areas outside the geographical area occupied by the species at the time it is listed... upon a determination... that such areas are essential for the conservation of the species.”

        Species are considered for emergency listing when the immediacy of the threat is so great to a significant proportion of the total population that the routine listing process is not sufficient to prevent large losses that may result in extinction.  Expected losses during the normal listing process that would risk the continued existence of the entire species are grounds for an emergency rule.  The purpose of the emergency rule provision of the ESA is to prevent species from becoming extinct by affording them immediate protection while the normal rulemaking procedures are being followed.  Taking this into consideration, we find that emergency reclassification is not warranted because the species is already afforded protection under the ESA, protection under sections 7 and 9 would remain the same, recovery implementation would not be any different, and we have recently applied cautious management to ensure that irreversible impacts from fisheries interactions do not occur (NMFS 2001).  Therefore, we conclude there will be no significant risk to the species as a whole during the normal listing process.
        Listing Factors and Basis for Determination
        Under section 4(a)(1) of the ESA and the implementing regulations at 50 CFR 424.11(c), a species can be reclassified, based on the best scientific and commercial data available after conducting a review of the species’ status, for any one or a combination of the following: (1) Present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence.
        Information Solicited
        To ensure that the status review is completed and based on the best available data, we are soliciting information and comments on whether the Northern and Florida Panhandle loggerhead subpopulations qualify as distinct population segments and, if so, whether they should be reclassified from threatened to endangered based on the above listing factors.  Specifically, we are soliciting information in the following areas: (1) Historical and current abundance for these nesting assemblages; (2) current distribution and movement; (3) population status and trends; (4) genetic stock identification; (5) current or planned activities that may adversely impact these subpopulations; and (6) ongoing efforts to protect the Northern and Florida Panhandle subpopulations and their habitat.  We request that all data, information, and comments be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications.

        All submissions must contain the submitter’s name, address, and any association, institution, or business that the person represents.  Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address (see ADDRESSES).
        Critical Habitat
        We are also requesting information on areas that may qualify as critical habitat for the loggerhead particularly related to the Northern and Florida Panhandle subpopulations.  Areas that include the physical and biological features essential to the conservation of the species should be identified.  Areas outside the present range should also be identified if such areas are essential to the conservation of the species.  Essential features include, but are not limited to: (1) Space for individual growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for reproduction and development of offspring; and (5) habitats that are protected from disturbance or are representative of the historical, geographical and ecological distributions of the species (50 CFR 424.12).
        Peer Review
        For listings, delistings, and reclassifications under the ESA, NMFS and the U.S. Fish and Wildlife Service have a joint policy for peer review of the scientific data (59 FR 34270, July 1, 1994).  The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available.  We are soliciting the names of recognized experts in the field that could take part in the peer review process for the loggerhead status review.  Independent peer reviewers will be selected from the academic and scientific community, applicable tribal and other Native American groups, Federal and state agencies, the private sector, and public interest groups.
        References Cited
        Ehrhart, L.M. 1979.  A survey of marine turtle nesting at  Kennedy Space Center, Cape Canaveral Air Force Station, North Brevard County, Florida, 1-122. Unpublished report to Division of Marine Resources, St. Petersburg, Florida, Fla. Dept. Nat. Res.

        Francisco, A.M., A.L. Bass, K.A. Bjorndal, A.B. Bolten, R. Reardon, M. Lamont, Y. Anderson, J. Foote, and B.W. Bowen. 2000. Stock structure and nesting site fidelity in Florida loggerhead turtles (Caretta caretta) resolved with mtDNA sequences.   Unpublished Manuscript.  Department of Fisheries and Aquatic Sciences, University of Florida, Gainesville, 23pp.
        LeBuff, C.R., Jr. 1990. The loggerhead turtle in the eastern Gulf of Mexico. Caretta Research, Inc., Sanibel, FL, 216 pp.
        Márquez-M., R.  1990.  FAO Species Catalogue, Vol. 11.  Sea turtles of the world, an annotated and illustrated catalogue of sea turtle species known to date.  FAO Fisheries Synopsis, 125, 81 pp.
        NMFS Biological Opinion, Reinitiation of Consultation on the Atlantic Highly Migratory Species Fisheries Management Plan and Its Associated Fisheries, June 8, 2001 pp: 167.
        NMFS Southeast Fisheries Science Center.  2001.  Stock assessments of loggerhead and leatherback sea turtles and an assessment of the impact of the pelagic longline fishery on the loggerhead and leatherback sea turtles of the Western North Atlantic.  U.S. Department of Commerce, National Marine Fisheries Service, Miami, FL, SEFSC Contribution PRD-00/01-08; Parts I-III and Appendices I-V1.

        Turtle Expert Working Group.  1998.  (Byles, R., C. Caillouet, D. Crouse, L. Crowder, S. Epperly, W. Gabriel, B. Gallaway, M. Harris, T. Henwood, S. Heppell, R. Marquez-M, S. Murphy, W. Teas, N. Thompson, and B. Witherington).  An Assessment of the Kemp’s ridley (Lepidochelys kempii) and loggerhead (Caretta caretta) sea  turtle populations in the Western North Atlantic.  U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-409, 96 pp.
        Turtle Expert Working Group.  2000.  Assessment update for the Kemp's ridley and loggerhead sea turtle populations in the Western North Atlantic.  U.S. Dep. Commer. NOAA Tech. Mem. NMFS-SEFSC-444, 115 pp.

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

          Dated: May 30, 2002.
          John Oliver,
          Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 02-13959 Filed 6-3-02; 8:45 am]
      BILLING CODE  3510-22-S