        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 2, 3, 7, 13, 15, 17, and 52
        [FAR Case 2015-038, Docket No. 2015-0038, Sequence No. 1]
        RIN 9000-AN31
        Federal Acquisition Regulation: Reverse Auction Guidance

          AGENCY:
          Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
          Proposed rule.

          SUMMARY:
          DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to provide guidance on the use of reverse auctions.

          DATES:
          Interested parties should submit comments to the Regulatory Secretariat at one of the addresses shown below on or before February 5, 2021 to be considered in the formulation of a final rule.

          ADDRESSES:
          Submit comments in response to FAR case 2015-038 to http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “FAR Case 2015-038”. Select the link “Comment Now” that corresponds with “FAR Case 2015-038.” Follow the instructions provided on the screen. Please include your name, company name (if any), and “FAR Case 2015-038” on your attached document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

            Instructions: Please submit comments only and cite “FAR case 2015-038” in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission to verify posting.

          FOR FURTHER INFORMATION CONTACT:
          For clarification of content, contact Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite “FAR Case 2015-038.”

        SUPPLEMENTARY INFORMATION:
        I. Background

        DoD, GSA, and NASA are proposing to revise the FAR in response to Government Accountability Office (GAO) report, GAO-14-108, Reverse Auctions: Guidance is Needed to Maximize Competition and Achieve Cost Savings, dated December 2013, and GAO report 18-446, Reverse Actions: Additional Guidance Could Help Increase Benefits and Reduce Fees, dated July 2018. Reverse auctions are a tool utilized by Federal agencies to obtain competitive pricing for an acquisition. Some of the potential benefits of reverse auctions include increased competition, price reductions, and greater small business participation. During a reverse auction, multiple vendors compete with one another to win a contract from the Government by lowering the offered price for which the vendor is willing to sell a particular product or service. The offered price(s), but not the offerors' identity, may be revealed to all offerors during the auction, and offerors have the opportunity to submit lower priced offers during the auction.

        The use of reverse auctions to obtain competitive pricing is not a new concept to the Government or industry. The reverse auction model was introduced in the mid-1990s. Many private companies now offer software and/or services to facilitate reverse auctions, as well as use reverse auctions in their own supply chain management scheme. In 1997, the FAR was also amended to permit the use of reverse auctions in Federal acquisitions. Since then, Federal agencies have been able to use reverse auctions to obtain pricing, while operating within the constructs of the FAR and any supplemental agency guidance. As a result, this rule intends to implement Governmentwide policy and guidance on reverse auctions to ensure a standardized and consistent use amongst all Federal agencies.
        Between its 2013 and 2018 reports, GAO reviewed Federal agencies' use of reverse auctions over almost a decade (between 2008 and 2017). Six agencies were identified as the largest users of reverse auctions, conducting approximately 15,000 reverse auctions in 2016. Through its review of the contract awards that resulted from these agencies' use of reverse auctions, GAO found that: Reverse auctions are generally used when acquiring commercial products; reverse auctions predominately result in the award of a fixed price contract valued less than $150,000 to a small business; the total annual value of contracts that utilize reverse auctions regularly represents less than one percent of all annual Government contract spending; and most used the services of a commercial reverse auction service provider.

        GAO reviewed and analyzed various aspects of agencies' use of reverse auctions. GAO found that: Confusion exists concerning a lack of documentation about reverse auction service provider fees and their application to Federal contracts; there is a lack of sufficient data available for agencies to verify actual cost savings resulting from a reverse auction; the potential benefits of reverse auctions are not being maximized, as many reverse auctions are resulting in the receipt of only one offer or a lack of interactive competition amongst offerors (i.e., the submission of more than one offer by a vendor); and when reverse auctions are used in the acquisition of items from preexisting contracts, agencies need to consider the impact of potentially paying two fees, one to use the contract and one to use the services of the reverse auction service provider, when determining whether the use of a reverse auction is cost effective, in comparison to other methods that are available to obtain pricing for an acquisition.
        As a result of its findings in 2013, GAO recommended that the Director of the Office of Management and Budget amend the FAR to address agencies' use of reverse auctions and issue Governmentwide guidance to maximize competition and savings when using reverse auctions. In response, the Office of Federal Procurement Policy issued a memorandum on June 1, 2015, entitled Effective Use of Reverse Auctions. This proposed rule implements the policy of the OFPP memo and addresses some of the concerns in the GAO reports.
        II. Discussion and Analysis
        A. New Subpart 17.8 and Associated Provision and Clauses
        Amendments to the FAR are proposed by this rule. To address GAO recommendations, a new FAR subpart 17.8, Reverse Auctions, is added. This new subpart:
        • Provides Governmentwide policy on: When the use of reverse auctions may be appropriate, conducting reverse auctions, and utilizing reverse auction service providers, including the evaluation of fees;
        • Identifies when reverse auctions shall not be used;
        • Requires contracting officers to evaluate and document that the use of a reverse auction service provider is cost effective;
        • Requires agency acquisitions for reverse auction services to be competed amongst commercial reverse auction service providers, and for the resulting contract or agreement to be sufficiently documented and made available to agency contracting officers for future reference and verification needs;
        • Clarifies requirements for contracting officers when conducting a reverse auction or utilizing the services of a reverse auction service provider;
        • Requires the contracting officer's contact information to be available to offerors; and
        • Provides guidance for situations in which only one offer is received in response to a reverse auction.
        The subpart also prescribes the use of a new provision, FAR provision 52.217-XX, Reverse Auction, and two new clauses, FAR clause 52.217-YY, Reverse Auction-Orders or Calls, and 52.217-ZZ, Reverse Auction Services.
        FAR provision 52.217-XX is included in solicitations when the contracting officer will utilize a reverse auction to obtain competitive pricing for an award. It notifies offerors that by submission of a quote or proposal, offerors agree to participate in the reverse auction and agree that the Government may reveal to all offerors the offered price(s), but without revealing any offeror's identity, except for the awardee's identity subsequent to an award resulting from the auction. The provision also reserves the Government's right to cancel the auction, in the event only one offer is received, identifies that the Government may use the services of a reverse auction service provider to conduct the auction, and notifies offerors how to withdraw agreement from further participation in the auction.
        FAR clause 52.217-YY is included in solicitations for and within indefinite-delivery, indefinite-quantity contracts and blanket purchase agreements (BPA) when a reverse auction may be used to award an order under the contract or agreement. The clause provides BPA holders and contractors with a notification similar to that of FAR provision 52.217-XX, but applies to delivery orders, task orders, or calls to be made under the basic contract or BPA.
        FAR clause 52.217-ZZ is included in solicitations and contracts for reverse auction services and specifies requirements for reverse auction service providers that provide reverse auction services to the Government.
        B. Other Amendments to the FAR
        To implement reverse auction guidance, this rule proposes additional FAR amendments as follows:
        A definition for “reverse auction” is provided in FAR 2.101.
        In FAR 3.104-4, language is added to show that during reverse auctions, agencies may reveal to all offerors the offered price(s), but may not reveal any offeror's identity except for the awardee's identity subsequent to an award resulting from the auction.
        FAR 7.105(b)(4) is revised to address “reverse auctions” under acquisition plan requirements.
        FAR 13.104 is revised to refer contracting officers to the requirements of proposed subpart 17.8 when promoting competition and utilizing simplified acquisition procedures.
        The limitations at FAR 15.306(e)(3) are revised to permit the Government to reveal to all offerors the offered price(s), without revealing any offeror's identity, when having exchanges with offerors under negotiated acquisition procedures and utilizing a reverse auction to obtain pricing.

        FAR 17.000(d) is added to include reverse auctions in the list of special contracting methods in part 17.

        III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-The-Shelf Items
        The reverse auction provision and clauses are available for use at or below the simplified acquisition threshold, and for commercial items, including commercially available off-the-shelf items.
        IV. Executive Orders 12866 and 13563
        Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        V. Executive Order 13771
        This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866.
        VI. Regulatory Flexibility Act

        DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

          DoD, GSA, and NASA are proposing to revise the Federal Acquisition Regulation (FAR) in response to a Government Accountability Office (GAO) report, GAO-14-108, Reverse Auctions: Guidance is Needed to Maximize Competition and Achieve Cost Savings, dated December 2013, and GAO report 18-446, Reverse Actions: Additional Guidance Could Help Increase Benefits and Reduce Fees, dated July 2018. Reverse auctions are a tool utilized by Federal agencies to increase competition and reduce the cost of certain items. During a reverse auction, offerors provide sequentially lower prices in an effort to win the contract award. The GAO report noted that the FAR does not specifically address reverse auctions and recommended that the Office of Management and Budget (OMB) take steps to amend the FAR to address agencies' use of reverse auctions.
          This proposed rule implements the June 1, 2015, Office of Federal Procurement Policy memorandum, Effective Use of Reverse Auctions, and addresses some of the concerns in the GAO reports. The objective of the rule is to ensure the effective use of reverse auctions to procure supplies and services within the Federal Government.
          The Government does not currently collect data on the number of awards that utilized a reverse auction to obtain pricing. However, GAO report 18-446 indicates that, while the total value of contracts awarded annually that utilize reverse auctions represents less than one percent of all annual Government contract spending, a majority of the annual contracts awarded that utilize reverse auctions are awarded to small business entities.
          The proposed rule does not impose any Paperwork Reduction Act reporting or recordkeeping requirements on any small entities. The rule does not duplicate, overlap, or conflict with any other Federal rules. No alternative approaches were considered. It is not anticipated that the proposed rule will have a significant economic impact on small entities.

        The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
        DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-038) in correspondence.
        VII. Paperwork Reduction Act
        The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

          List of Subjects in 48 CFR Parts 2, 3, 7, 13, 15, 17, and 52
          Government procurement.

          William F. Clark,
          Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.

        Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 2, 3, 7, 13, 15, 17, and 52 as set forth below:
        1. The authority citation for 48 CFR parts 2, 3, 7, 13, 15, 17, and 52 continues to read as follows:

          Authority:
           40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

          PART 2—DEFINITIONS OF WORDS AND TERMS

        2. Amend section 2.101(b)(2) by adding in alphabetical order a definition for “Reverse auction” to read as follows:

          2.101
           Definitions.

          (b) * * *
          (2) * * *

            Reverse auction means the process for obtaining pricing, usually supported by an electronic tool, where offerors see competing offerors' price(s), without disclosure of the competing offerors' identity, and have the opportunity to submit lower priced offers until the close of the auction.

          PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

        3. Amend section 3.103-2 by adding paragraph (a)(1)(iv) to read as follows:

          3.103-2
           Evaluating the certification.
          (a) * * *
          (1) * * *
          (iv) Participating in a reverse auction (see subpart 17.8).

        4. Amend section 3.104-4 by revising paragraph (e)(1) to read as follows:

          3.104-4
           Disclosure, protection, and marking of contractor bid or proposal information and source selection information.

          (e) * * *
          (1) A contractor from disclosing its own bid or proposal information or the recipient from receiving that information. During reverse auctions, agencies may reveal to all offerors the offered price(s), but may not reveal any offeror's identity except for the awardee's identity subsequent to an award resulting from the auction (see subpart 17.8);

          PART 7—ACQUISITION PLANNING

            7.105
             [Amended]

        5. Amend section 7.105 by removing from paragraph (b)(4) introductory text “including” and adding “including the basis for using a reverse auction (when applicable),” in its place.

          PART 13—SIMPLIFIED ACQUISITION PROCEDURES

        6. Amend section 13.104 by adding paragraph (c) to read as follows:

          13.104
           Promoting competition.

          (c) When conducting a reverse auction, see subpart 17.8.

          PART 15—CONTRACTING BY NEGOTIATION

        7. Amend section 15.306 by revising paragraph (e)(3) to read as follows:

          15.306
           Exchanges with offerors after receipt of proposals.

          (e) * * *
          (3) Reveals an offeror's price without that offeror's permission. However, the contracting officer may inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also permissible, at the Government's discretion, to indicate to all offerors the cost or price that the Government's price analysis, market research, and other reviews have identified as reasonable (41 U.S.C. 2102 and 2107). When using reverse auction procedures (see subpart 17.8), it is also permissible to reveal to all offerors the offered price(s), without revealing any offeror's identity;

          PART 17—SPECIAL CONTRACTING METHODS

        8. Revise section 17.000 by—
        a. Removing from paragraph (b) the word “and”;
        b. Removing from paragraph (c) “contracting.” and adding “contracting; and” in its place; and
        c. Adding paragraph (d).
        The addition reads as follows:

          17.000
           Scope of part.

          (d) The use of reverse auctions to obtain competitive pricing.

        9. Add subpart 17.8 to read as follows:

            Subpart 17.8—Reverse Auctions
            Sec.
            17.800
            Scope of subpart.
            17.801
            Definition.
            17.802
            Policy.
            17.803
            Applicability.
            17.804
            Procedures.
            17.805
            Solicitation provision and contract clauses.

          Subpart 17.8—Reverse Auctions

            17.800
             Scope of subpart.
            This subpart prescribes policies and procedures for conducting reverse auctions and utilizing reverse auction service providers.

            17.801
             Definition.
            As used in this subpart, reverse auction service provider means a commercial or Government entity that provides a means for conducting reverse auctions when acquiring supplies or services to be used by the Government.

            17.802
             Policy.
            (a) The use of reverse auctions may be appropriate when market research indicates that—
            (1) A competitive marketplace exists for the supplies and/or services being acquired;
            (2) Multiple offerors can satisfy the agency's requirement; and

            (3) The nature of the supplies and/or services being acquired (e.g., clearly defined specifications, less complex requirements) encourages an iterative bidding process (i.e., multiple offerors participate and at least one offeror submits more than one offer during the reverse auction).

            (b) The reverse auction process is used to obtain pricing for an acquisition. When using the reverse auction process, contracting officers are still required to follow the acquisition policies and procedures (i.e., subpart 8.4 or 16.5 or part 13 or 15) prescribed elsewhere in the FAR, as appropriate for the particular acquisition.
            (c)(1) A service platform for conducting reverse auctions may be provided by a commercial or Government entity.
            (2) While some reverse auction service providers are paid directly by the Government for reverse auction services, other providers may incorporate a fee structure that uses an indirect payment method. When using an indirect payment method, the reverse auction service provider adds a fee(s) to the price of the winning offer that is provided to the Government at the close of an auction. The Government then pays the winning offeror the total price of the offer, which includes the fee(s) added by the reverse auction service provider. The reverse auction service provider then collects its fee(s) from the winning offeror.
            (3) When acquiring reverse auction services to be provided by a commercial reverse auction service provider, agencies shall—
            (i) Compete the requirement;
            (ii) Sufficiently detail the provider's fee structure in the resultant contract or agreement for reverse auction services; and
            (iii) Make the details of the contract or agreement for reverse auction services, including the provider's fee structure, available to contracting officers for consideration when determining whether to use a reverse auction service provider, in accordance with 17.804(a).
            (d) Contracting officers shall only use the services of a reverse auction service provider that—
            (1) Does not assert or imply that it can or will obtain a Government contract for participants of a reverse auction;
            (2) Allows entities to register, at no cost, as potential offerors for reverse auctions conducted on behalf of the Government on the provider's reverse auction platform;
            (3) Allows each entity, as part of the registration process, the opportunity to execute a proprietary data protection agreement with the provider; provided that the terms in the agreement do not affect the terms and conditions of a Government solicitation or contract;
            (4) Protects from unauthorized use or disclosure and does not release outside of the Government—
            (i) All contractor bid or proposal information (see 3.104-1) and source selection information associated with providing reverse auction services to the Government;
            (ii) All information similarly generated to support the issuance of a task or delivery order or call against a blanket purchase agreement; and
            (iii) Information identified by an offeror as restricted from duplication, use, or disclosure—in whole or in part—for any purpose other than to evaluate the reverse auction participant's price or proposal;
            (5) At the close of each auction—
            (i) Provides the Government with the winning offer, along with information that separately identifies the offeror's price and the price for each provider fee or charge included in the total price;
            (ii) Provides the Government with all information and documentation received from offerors in response to the reverse auction; and
            (iii) Removes all documentation received from offerors in response to the reverse auction from its business and computer systems;
            (6) Does not participate as an offeror in any reverse auction which the provider is hosting on behalf of the Government. This prohibition includes participation in a reverse auction by any entity with which the provider has a relationship that raises an actual or potential conflict of interest; and
            (7) Asserts no rights or license in the data gathered or generated during a reverse auction.
            (e) Only a contracting officer shall—
            (1) Exclude an offeror from participating in an auction;
            (2) Determine the awardee(s) of any reverse auction; or
            (3) Determine that the offeror is a responsible prospective contractor (see 9.103, 9.104-1, and 9.405(d)).

            17.803
             Applicability.
            Reverse auction processes shall not be used for—
            (a) Design-build construction contracts (see part 36);
            (b) Sealed bids (see part 14); or
            (c) Acquisition of personal protective equipment.

            17.804
             Procedures.
            (a) When considering the use of a reverse auction service provider, the contracting officer shall—

            (1) Conduct market research for available sources of reverse auction services (e.g., existing agency contracts or agreements (see 17.802(c)), commercial service providers (see 17.802(d)), or Government service providers);
            (2) Evaluate the fee structure for each reverse auction service provider; and
            (3) Document the contract file with a determination that the use of a reverse auction service provider is cost effective.
            (b) When conducting a reverse auction, the contracting officer shall—
            (1) Only provide the offered price(s) to all offerors, without disclosing the identity of the offeror(s) (see 3.104-4(a) and (e)(1));
            (2) Allow offerors the opportunity to continually revise their prices downward during the reverse auction until the close of the auction; and
            (3) Allow an offeror to withdraw an offer from further consideration prior to the close of an auction.
            (c) When using the services of a reverse auction service provider, contracting officers shall—
            (1) Include contact information in the solicitation that will allow offerors to contact the contracting officer directly with any questions;
            (2) Upon receipt of a winning offer, verify that any provider fees or charges included in the price are in accordance with the provider's fee structure, as evaluated in accordance with paragraph (a)(2) of this section; and
            (3) Include in the contact file any information and/or documentation received by the reverse auction service provider from offerors responding to the reverse auction.
            (d) If only one offeror participates in an auction, the contracting officer may—
            (1) Cancel the auction and document the contract file with evidence of the participation of only one offeror; or
            (2) Accept the offer, only if the price is determined to be fair and reasonable (see 13.106-3(a)(2) and 15.404-1).

            17.805
             Solicitation provision and contract clauses.
            (a) The contracting officer shall insert the provision at 52.217-XX, Reverse Auction, in solicitations, when the contracting officer is utilizing a reverse auction to award a contract or blanket purchase agreement.
            (b) The contracting officer shall insert the clause at 52.217-YY, Reverse Auction-Orders or Calls, in solicitations and contracts for a multiple award indefinite-delivery/indefinite-quantity contract or blanket purchase agreement, and a reverse auction may be used to place orders or calls under the basic contract or blanket purchase agreement.
            (c) The contracting officer shall insert the clause at 52.217-ZZ, Reverse Auction Services, in all solicitations and contracts for the purchase of reverse auction services.

          PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        10. Add sections 52.217-XX, 52.217-YY, and 52.217-ZZ to read as follows:

          52.217-XX
          Reverse auction.
          52.217-YY
          Reverse auction-orders or calls.
          52.217-ZZ
          Reverse auction services.

          52.217-XX
           Reverse auction.
          As prescribed in 17.805(a), insert the following provision:

            Reverse Auction (Date)
            (a) Definitions. As used in this provision—

              Reverse auction means the process for obtaining pricing, usually supported by an electronic tool, where offerors see competing offerors' price(s), without disclosure of the competing offerors' identity, and have the opportunity to submit lower priced offers until the close of the auction.

              Reverse auction service provider means a commercial or Government entity that provides a means for conducting reverse auctions when acquiring supplies or services to be used by the Government.
            (b) Reverse auction. The Government intends to conduct a reverse auction under this solicitation to award a contract or blanket purchase agreement.
            (c) Offeror agreement. By submission of a quote or proposal in response to the solicitation, the Offeror agrees to participate in the reverse auction, and agrees that the Government may reveal to all Offerors the offered price(s) in the auction, without revealing any Offeror's identity, except for the awardee's identity subsequent to an award resulting from the auction. The Offeror may withdraw its agreement to further participate in the process by withdrawing its offer before the close of the auction by notifying the Contracting Officer via the contact method identified in the solicitation.
            (d) Only one offer. If the reverse auction produces only one offer, the Government reserves the right to cancel the auction.
            (e) Release of information. The Government may use a reverse auction service provider to conduct the reverse auction. Any price or proposal information or source selection information received by the reverse auction service provider in relation to the reverse auction shall not be released, outside of the Government, unless otherwise required by law. However, this does not prevent the Government from revealing to all Offerors the offered price(s) in the auction, without revealing any Offeror's identity. Price or proposal information includes, but is not limited to—
            (1) Contractor bid or proposal information, as defined at Federal Acquisition Regulation 3.104-1; and
            (2) Information identified by the Offeror as restricted from duplication, use, or disclosure—in whole or in part—for any purpose other than to evaluate the Offeror's price or proposal.

            (End of Provision)

          52.217-YY
           Reverse auction-orders or calls.
          As prescribed in 17.805(b), insert the following clause:

            Reverse Auction—Orders or Calls (Date)
            (a) Definitions. As used in this clause—

              Reverse auction means the process for obtaining pricing, usually supported by an electronic tool, where offerors see competing offerors' price(s), without disclosure of the competing offerors' identity, and have the opportunity to submit lower priced offers until the close of the auction.

              Reverse auction service provider means a commercial or Government entity that provides a means for conducting reverse auctions when acquiring supplies or services to be used by the Government.
            (b) Reverse auction. The Contracting Officer may conduct a reverse auction to award an order or call under this contract or blanket purchase agreement.
            (c) Offeror agreement. When a reverse auction is conducted under this contract or blanket purchase agreement, the following applies:
            (1) The Contractor's or blanket purchase agreement holder's submission of a quote or proposal in response to the solicitation for an order or call constitutes agreement to participate in the auction.
            (2) The Government may reveal to all Offerors the offered price(s) in the auction, without revealing any Offerors' identity, except for the awardee's identity subsequent to an award resulting from the auction.
            (3) The Contractor or blanket purchase agreement holder may withdraw its agreement to further participation in the reverse auction by withdrawing its offer. To withdraw an offer made in response to a reverse auction solicitation issued under this contract or blanket purchase agreement, the Contractor or blanket purchase agreement holder shall notify the Contracting Officer of the request before the close of the auction via the contact method identified in the solicitation.

            (4) If the reverse auction produces only one offer, the Government reserves the right to cancel the auction.

            (d) Release of information. The Government may use a reverse auction service provider to conduct the reverse auction. Any price or proposal information or source selection information received by the reverse auction service provider in relation to the reverse auction shall not be released, outside of the Government. However, this does not prevent the Government from revealing to all Offerors the offered price(s) in the auction, without revealing any Offeror's identity. Price or proposal information includes, but is not limited to—
            (1) Contractor bid or proposal information, as defined at Federal Acquisition Regulation 3.104-1;
            (2) Price or proposal information similarly generated for a task or delivery order or a call against a blanket purchase agreement; and
            (3) Information identified by the Offeror as restricted from duplication, use, or disclosure—in whole or in part—for any purpose other than to evaluate the Offeror's price or proposal.

          (End of Clause)

          52.217-ZZ
          Reverse auction services.
          As prescribed in 17.805(c), insert the following clause:

            Reverse Auction Services (Date)
            (a) Definition. Reverse auction means the process for obtaining pricing, usually supported by an electronic tool, where offerors see competing offerors' price(s), without disclosure of the competing offeror's identity, and have the opportunity to submit lower priced offers until the close of the auction.
            (b) Duties of the reverse auction service provider. When providing reverse auction services to the Government, the Contractor shall—
            (1) Not assert or imply that it can or will obtain a Government contract for the participants of a reverse auction;
            (2) Allow entities to register, at no cost, as potential offerors for any reverse auction conducted on behalf of the Government on the provider's reverse auction platform. As part of the registration process, the Contractor shall allow each entity the opportunity to execute a proprietary data protection agreement with the Contractor; however, the Contractor shall not negotiate terms in the agreement that affect the terms and conditions of a Government solicitation or contract;
            (3) Protect from unauthorized use or disclosure and not release outside of the Government any price or proposal information or any source selection information (see the “source selection information” definition in Federal Acquisition Regulation (FAR) 2.101) received by the Contractor in relation to a reverse auction. However, this does not prevent the Contractor from revealing to all reverse auction participants the offered price(s) in the auction, without revealing any reverse auction participants' identity. Price or proposal information shall include, but is not limited to—
            (i) Contractor bid or proposal information, as defined at FAR 3.104-1;
            (ii) Price or proposal information similarly generated for a task or delivery order or a call against a blanket purchase agreement; and
            (iii) Information identified by the reverse auction participant as restricted from duplication, use, or disclosure—in whole or in part—for any purpose other than to evaluate the reverse auction participant's price or proposal;
            (4) Not participate as an offeror in any reverse auction which the Contractor is hosting on behalf of the Government. This prohibition includes participation in a reverse auction by any entity with which the Contractor has a relationship that raises an actual or potential conflict of interest;
            (5) At the close of each auction—
            (i) Provide the Contracting Officer with the winning offer, along with information that separately identifies the offeror's price and the price for each provider fee or charge included in the total price;
            (ii) Provide the Contracting Officer with all information and documentation received from reverse auction participants in response to the reverse auction; and
            (iii) Remove all documentation received from reverse auction participants in response to the reverse auction from its business and computer systems; and
            (6) Assert no right or license in the data gathered or generated during a reverse auction.

          (End of Clause)

      [FR Doc. 2020-24936 Filed 12-4-20; 8:45 am]
      BILLING CODE 6820-EP-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA-2019-0009]
        RIN 2127-AM10
        Federal Motor Vehicle Safety Standards; Electric-Powered Vehicles: Electrolyte Spillage and Electrical Shock Protection

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

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:
          This document proposes to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 305, “Electric-powered vehicles: Electrolyte spillage and electrical shock protection,” to clarify the direct contact protection requirements that apply to high voltage connectors, and to explicitly permit the use of high voltage connectors that cannot be separated without the use of tools. The proposed changes to these requirements would harmonize FMVSS No. 305 with Global Technical Regulations (GTRs) No. 13 and No. 20, which explicitly permit such connectors. In addition, it would make three minor technical corrections to the standard.

          DATES:
          Comments must be received on or before March 15, 2019.

          ADDRESSES:
          You may submit comments identified by the docket number in the heading of this document or by any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments on the electronic docket site by clicking on “Help” or “FAQ.”
          • Mail: Docket Management Facility. M-30, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590.
          • Hand Delivery: U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal Holidays.
          • Fax: 202-493-2251.
          Regardless of how you submit comments, you must include the docket number identified in the heading of this notice.
          You may call the Docket Management Facility at 202-366-9826.

            Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to www.regulations.gov, including any personal information provided.

            Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its decision-making process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.transportation.gov/privacy. In order to facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered.

            Docket: For access to the docket to read background documents or comments received, go to www.regulations.gov, or the street address listed above. Follow the online instructions for accessing the dockets.

          FOR FURTHER INFORMATION CONTACT:
          For technical issues, you may contact Ms. Shashi Kuppa, Office of Crashworthiness Standards; telephone: 202-366-3827; facsimile: 202-493-2990. For legal issues, you may contact Mr. Daniel Koblenz, Office of Chief Counsel; telephone: 202-366-2992; facsimile: 202-366-3820. The mailing address of these officials is: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Introduction
          II. Background
          III. Proposal
          IV. Technical Corrections
          V. Effective Date and Comment Period
          VI. Rulemaking Analyses and Notices
          VII. Public Participation

        I. Introduction

        This document proposes to amend FMVSS No. 305, paragraph S5.4.1.5, to clarify that the three compliance options listed in S5.4.1.5(a), (b) and (c) only pertain to connectors that can be separated without the use of a tool. This proposal would make clear that S5.4.1.5(a), (b) and (c) do not apply to high voltage connectors that require the use of a tool to separate from their mating component and that meet S5.4.1.4's IPXXD or IPXXB requirements 1
           when the connector is connected to its mating component. NHTSA believes that connectors that require the use of a tool to separate from their mating component provide a level of direct contact protection that is equivalent to that provided by connectors already allowed under the standard. NHTSA believes that this proposed amendment will provide additional design flexibility to manufacturers of electric and fuel cell vehicles, thus facilitating the manufacture of such vehicles.

            1 Protection degree IPXXD is protection from contact with high voltage live parts. It is tested by probing electrical protection barriers with the test wire probe, IPXXD, shown in Figure 7a of FMVSS No. 305. Protection degree IPXXB is protection from contact with high voltage live parts. It is tested by probing electrical protection barriers with the jointed test finger probe, IPXXB, shown in Figure 7b of FMVSS No. 305.

        The changes proposed in this document would amend regulatory requirements that were established in the agency's September 27, 2017 final rule (82 FR 44945), which added several new requirements to improve electric vehicle safety. The final rule also sought to harmonize FMVSS No. 305 with the electrical safety requirements of GTR No. 13, “Hydrogen and fuel cell vehicles,” and a then-pending GTR No. 20, “Electric vehicle safety.” 2
           (NHTSA voted in favor of establishing GTR No. 20 in March 2018.) This NPRM proposes to better harmonize FMVSS No. 305 with GTRs No. 13 and No. 20, which allow for the use of connectors that require the use of a tool to separate. NHTSA seeks to issue a final rule based on today's NPRM as soon as possible, in light of the September 27, 2017 final rule's compliance date of September 27, 2018.

            2 GTRs are model standards that are developed through collaboration between contracting parties to the 1998 Agreement concerning the Establishing of Global Technical Regulations for Wheeled Vehicles, Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles (the “1998 Agreement”). As a contracting party to the 1998 Agreement, the United States, through NHTSA, worked closely with experts from other contracting parties to develop GTR No. 13 and GTR No. 20.

        II. Background
        FMVSS No. 305 establishes requirements to reduce deaths and injuries during and after a crash that occur because of electrolyte spillage from electric energy storage devices, intrusion of electric energy storage/conversion devices into the occupant compartment, and electric shock. On September 27, 2017, NHTSA published a final rule amending FMVSS No. 305 by, among other things, adopting several electrical safety requirements found in GTR No. 13 (and later, GTR No. 20). 82 FR 44945. The GTR provisions adopted in the final rule included general requirements for protecting humans against direct contact with high-voltage live parts (FMVSS No. 305, S5.4.1.4), as well as specific direct contact protection requirements for high-voltage connectors (FMVSS No. 305, S5.4.1.5).3
           (The reason for specialized direct contact protection requirements for high voltage connectors is that, unlike other high voltage equipment, connectors are designed to separate from a mating component, which could potentially expose high voltage conductive parts to human contact.)

            3 FMVSS No. 305 defines a “connector” as “a device providing a mechanical connection and disconnection of high voltage electrical conductors to a suitable mating component, including its housing.”

        S5.4.1.4 requires that all high voltage sources, including high-voltage connectors, meet protection degree IPXXD or IPXXB (as appropriate) during normal vehicle operation. In addition, S5.4.1.5 requires that high voltage connectors must meet at least one of the following three compliance options to provide protection when separated: (a) The connector meets protection degree IPXXD/IPXXB when separated from its mating component, if the connector can be separated without the use of tools; (b) the voltage of the live parts becomes less than or equal to 60 volts of direct current (VDC) or 30 volts of alternating current expressed using the root mean square value (VAC) within one second after the connector is separated from its mating component; or (c) the connector is provided with a locking mechanism 4
           and there are other components that must be removed in order to separate the connector from its mating component and these other components cannot be removed without the use of tools.

            4 A locking mechanism requires at least two distinct actions to separate the connector from its mating component and is intended to prevent inadvertent disconnection of the connector from its mating component.

        NHTSA had intended for these provisions to harmonize the direct contact requirements for high voltage connectors in FMVSS No. 305 with those in GTRs No. 13 and No. 20 (which explicitly permit the use of connectors that require the use of a tool to separate).5 6
           However, following its issuance of the final rule, the agency received petitions for reconsideration from the Alliance of Automobile Manufacturers and Global Automakers, which argued in part that the regulatory text adopted in the final rule did not appear to permit use of connectors that require the use of a tool to separate. For this reason, the petitions requested that NHTSA amend S5.4.1.5 to provide a compliance option for high voltage connectors that meet IPXXD/IPXXB protection degree when connected, and that require the use of a tool to separate.

            5 See September 27, 2017 final rule (82 FR at 44953) (Stating that the direct contact requirements for connectors “are harmonized with GTR No. 13, ECE R100, and the draft EVS-GTR for electric vehicles.”).

            6 See GTR No. 13, 5.3.1.2.2, Protection against direct contact. https://www.unece.org/fileadmin/DAM/trans/main/wp29/wp29wgs/wp29gen/wp29registry/ECE-TRANS-180a13e.pdf.

        NHTSA agrees with the petitioners that, although the agency had intended to permit connectors that require the use of a tool to separate, that intent is not clear in the current regulatory text. In addition, NHTSA believes that the current wording of S5.4.1.5 does not make clear whether the provision would permit a connector that requires the use of a tool to separate when the connector does not have the “other components” mentioned in S5.4.1.5(c). The absence of a compliance option that allows high voltage connectors that require the use of a tool to separate burdens vehicle manufacturers because it is a common method of providing direct contact protection for connectors. NHTSA proposes to amend S5.4.1.5 to make clear that connectors that require the use of a tool to separate are permitted.
        The agency notes that, although these issues are within the scope of the September 27, 2017 final rule and could have been addressed in a response to the petitions for reconsideration, the agency would like to seek public comment on its proposed changes to the regulatory text. NHTSA believes public comments would be beneficial in ensuring that the changes proposed achieve their intended purpose of harmonizing FMVSS No. 305 with GTRs No. 13 and No. 20.
        III. Proposal

        NHTSA proposes to amend S5.4.1.5 to clarify that connectors are only required to meet one of the three listed compliance options if the connector can be separated without the use of a tool. NHTSA believes this change will harmonize that provision in FMVSS No. 305 with GTRs No. 13 and No. 20, as the agency had intended in its September 27, 2017 final rule. Moreover, NHTSA believes that this change will provide additional design flexibility to manufacturers of electric vehicles and fuel cell vehicles without compromising safety.
        This change will harmonize FMVSS No. 305 with GTRs No. 13 and No. 20 because it will clarify that high voltage connectors that require the use of a tool to separate meet requirements for direct contact protection. As noted above, NHTSA had intended to provide the same level of direct contact protection as GTRs No. 13 and No. 20, which explicitly permit such connectors. Because FMVSS No. 305 currently does not appear to permit high voltage connectors that require the use of a tool to separate, adopting the proposed changes would bring FMVSS No. 305 in line with GTRs No. 13 and No. 20.
        The proposed change will not affect electric vehicle safety because a connector that requires the use of a tool to separate will not inadvertently separate due to vehicle jostling or human error. Thus, it eliminates the possibility that a person is inadvertently exposed to a risk of electric shock. NHTSA notes that connectors requiring the use of a tool to separate provide essentially the same level of electrical shock protection as connectors that are currently permitted under provision (c) of S5.4.1.5. That provision currently permits connectors that cannot be accessed without removing surrounding components that themselves require the use of a tool to remove. Connectors under S5.4.1.5(c) provide the same level of protection as connectors that require the use of a tool to separate because both cannot be separated without a person intentionally using a tool to accomplish connector separation, which effectively eliminates the risk of accidental shock. Thus, NHTSA believes that requiring a connector that cannot be separated without the use of a tool to also meet one of the three existing compliance options in S5.4.1.5 is unwarranted.
        IV. Technical Corrections
        NHTSA is also proposing to make several technical corrections to the language of FMVSS No. 305, which are described below.
        Definition of “High Voltage Live Part”
        NHTSA is proposing to add a definition for the term “high voltage live part” to the definitions section of FMVSS No. 305. The term would be defined as “a live part of a high voltage source.” NHTSA had intended to add this definition as part of the September 27, 2017 final rule, as indicated by the agency's statement that it will “adopt terms such as `high voltage live parts' . . . in place of proposed terms that were less clear.” 82 FR at 44948. In addition, the agency stated in Table 1 of the final rule that adding the term “high voltage live parts” to S4 will clarify the requirements of the final rule, such as the applicability of IPXXD protection requirements. The agency will add this missing definition as a technical correction.
        Cross-Reference
        NHTSA is proposing to amend the cross-reference to the electrical isolation monitoring system requirement in S8 so that it is consistent with the reorganization of the FMVSS No. 305 that was done as part of the September 27, 2017 final rule. The final rule redesignated the electrical isolation monitoring system requirement from “S5.4” to “S5.4.4,” but did not make a conforming change to S8, which still refers to “S5.4.” The agency will change the S8 cross-reference to “S5.4.4” as a technical correction.
        Corrected Term

        NHTSA is proposing to correct the use of incorrect terminology in the description of the requirements for a resistance tester in S9.2(a). Currently, that provision states that “resistance is measured using a resistance tester that can measure current levels of at least 0.2 Amperes.” (Emphasis added.) The term “measure” should be “supply.” 7
           Accordingly, the agency will replace “measure” with “supply” in S9.2(a) as a technical correction.

            7 A resistance tester does not “measure” current in a circuit; it supplies current to a circuit which allows the tester to measure that circuit's level of electrical resistance.

        V. Effective Date and Comment Period

        NHTSA proposes that the final rule that follows this NPRM will have an immediate effective date upon publication of the final rule in the Federal Register.
        The Safety Act states that an amendment to a safety standard may not take effect earlier than 180 days after the standard is prescribed, or later than one year after the standard is prescribed unless, for good cause shown, a different effective date would be in the public interest. 49 U.S.C. 30111(d). NHTSA has tentatively concluded that good cause exists for this rule to become effective immediately, because the rule would not impose new substantive requirements that would burden vehicle manufacturers, and in fact would relieve an existing restriction. Similarly, the Administrative Procedure Act (APA) states that a rule cannot be made effective less than 30 days after publication, unless the rule falls under one of three enumerated exceptions. One of these exceptions is for a rule that “grants or recognizes an exemption or relieves a restriction.” 5 U.S.C. 553(d)(1). This rule would fall under this exception because it would relieve the existing restriction that prohibits the use of high voltage connectors that cannot be separated without the use of tools. NHTSA seeks comment on its tentative conclusion that good cause exists to justify an immediate effective date for a final rule based on this proposal.
        DOT Order 2100.5 requires that NHTSA provide a public comment period of at least 45 days for non-significant regulations, but may provide a shorter comment period if the proposed regulation is accompanied by a brief statement of reasons. NHTSA is providing a shortened 15-day comment period principally for two reasons. First, the September 27, 2017 final rule's effective date was September 27, 2018. The proposed amendments provide flexibility to manufacturers in meeting the final rule's requirements, so NHTSA would like to issue a final rule based on this NPRM as soon as possible. Second, the proposed changes are merely corrective and clarifying in nature, and a review of them by the public can be done quickly.
        VI. Rulemaking Analyses and Notices
        Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

        We have considered the potential impact of this proposed rule under Executive Order (E.O.) 12866, E.O. 13563, and the Department of Transportation's regulatory policies and procedures and have determined that today's proposed rule is nonsignificant. This rulemaking document was not reviewed by the Office of Management and Budget (OMB) under E.O. 12866. It is not considered to be significant under E.O. 12866 or the Department of Transportation's Regulatory Policies and Procedures. The amendments proposed by this NPRM mostly clarify or correct text adopted by a September 27, 2017 final rule and will have no significant effect on the national economy. This NPRM would clarify the direct contact protection requirements that apply to high voltage connectors, and to explicitly permit the use of high voltage connectors that cannot be separated without the use of tools.

        As noted above, NHTSA is providing a 15-day comment period for two principal reasons. First, the September 27, 2017 final rule's effective date is September 27, 2018. The proposed amendments provide flexibility to manufacturers in meeting the final rule's requirements, so NHTSA would like to issue a final rule based on this NPRM as soon as possible. Second, the proposed changes are merely corrective and clarifying in nature, and a review of them by the public can be done quickly.
        Executive Order 13771
        This proposed rule is E.O. 13771 titled “Reducing Regulation and Controlling Regulatory Costs,” directs that, unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. In addition, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs. Only those rules deemed significant under section 3(f) of E.O. 12866, “Regulatory Planning and Review,” are subject to these requirements. 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.
        Executive Order 13609: Promoting International Regulatory Cooperation
        The policy statement in section 1 of E.O. 13609 provides that unnecessary differences in regulatory approaches between U.S. agencies and their foreign counterparts can negatively affect the international competitiveness of U.S. businesses. Accordingly, U.S. agencies should, where possible, engage with these foreign counterparts to identify regulatory approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation.
        This rulemaking harmonizes FMVSS No. 305 with provisions that are in GTRs No. 13 and No. 20. Specifically, the primary clarification proposed by this document—that the use of connectors that cannot be separated without the use of tools is permissible under FMVSS No. 305—will bring FMVSS No. 305 into alignment with GTRs No. 13 and No. 20 requirements relating to high voltage connectors, and so will further the goals of E.O. 13609.
        Regulatory Flexibility Act
        Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)(1)). No regulatory flexibility analysis is required if the head of an agency certifies the proposal will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a proposal will not have a significant economic impact on a substantial number of small entities.
        I hereby certify that this proposed rule would not have a significant economic impact on a substantial number of small entities. The amendments proposed by this NPRM mostly clarify or correct text adopted by a September 27, 2017 final rule. This proposed rule would make clear that connectors that cannot be separated without the use of a tool are permitted under FMVSS No. 305 without having to have present “other components” needing a tool to separate.
        This action would not impose any additional restrictions that would affect small entities, and in fact, would give greater design flexibility to manufacturers of electric vehicles and HFCVs.
        Executive Order 13132 (Federalism)
        NHTSA has examined today's proposed rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. Today's proposed rule would not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
        NHTSA rules can have preemptive effect in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision stating that, if NHTSA has established a standard for an aspect motor vehicle or motor vehicle equipment performance a State may only prescribe or continue in effect a standard for that same aspect of performance if the State standard is identical to the Federal standard. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
        The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of State common law tort causes of action by virtue of NHTSA's rules—even if not expressly preempted.

        This second way that NHTSA rules can preempt is dependent upon the existence of an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer—notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
        Pursuant to E.O. 13132, NHTSA has considered whether this proposed rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
        To this end, the agency has examined the nature (e.g., the language and structure of the regulatory text) and objectives of today's proposed rule and finds that this proposed rule, like many NHTSA rules, prescribes only a minimum safety standard. Accordingly, NHTSA does not intend that this proposed rule preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by today's proposal. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard proposed in this document. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.
        Executive Order 12988 (Civil Justice Reform)
        When promulgating a regulation, E.O. 12988 specifically requires that the agency must make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
        Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above in connection with E.O. 13132. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
        Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks)
        E.O. 13045, “Protection of Children from Environmental Health and Safety Risks,” (62 FR 19885; April 23, 1997) applies to any proposed or final rule that: (1) Is determined to be “economically significant,” as defined in E.O. 12866, and (2) concerns an environmental health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If a rule meets both criteria, the agency must evaluate the environmental health or safety effects of the rule on children, and explain why the rule is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.
        This proposed rule is not subject to E.O. 13045 because it is not economically significant.
        National Technology Transfer and Advancement Act

        Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
        Pursuant to the above requirements, the agency conducted a review of voluntary consensus standards to determine if any were applicable to this proposed rule. NHTSA searched for but did not find voluntary consensus standards directly applicable to the amendments proposed in this NPRM.
        However, consistent with the NTTAA, this proposal is aligned with regulations developed globally on electric vehicle safety, namely GTR No. 13 and GTR No. 20.8
           The GTRs permit the use of high voltage connectors that cannot be separated without the use of tools. We believe that the proposed amendment to FMVSS No. 305 would promote harmonization of our countries' regulatory approaches on electric vehicles and HFCVs.

            8 The NTTAA seeks to support efforts by the Federal government to ensure that agencies work with their regulatory counterparts in other countries to address common safety issues. Circular No. A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” January 27, 2016, p. 15.

        Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). We note that as this proposed rule only makes minor adjustments and clarifications to FMVSS No. 305. Thus, it would not result in expenditures by any of the aforementioned entities of over $100 million annually.
        National Environmental Policy Act
        NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.
        Paperwork Reduction Act
        Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This proposed rule imposes no new reporting requirements on manufacturers.
        Regulation Identifier Number (RIN)
        The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
        VII. Public Participation
        How do I prepare and submit comments?
        • To ensure that your comments are correctly filed in the Docket, please include the Docket Number found in the heading of this document in your comments.
        • Your comments must not be more than 15 pages long.9
           NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments, and there is no limit on the length of the attachments.

            9 49 CFR 553.21.

        • If you are submitting comments electronically as a PDF (Adobe) file, NHTSA asks that the documents be submitted using the Optical Character Recognition (OCR) process, thus allowing NHTSA to search and copy certain portions of your submissions.

        • Please note that pursuant to the Data Quality Act, in order for substantive data to be relied on and used by NHTSA, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, NHTSA encourages you to consult the guidelines in preparing your comments. DOT's guidelines may be accessed at https://www.transportation.gov/regulations/dot-information-dissemination-quality-guidelines.

        Tips for Preparing Your Comments
        When submitting comments, please remember to:

        • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
        • Describe any assumptions you make and provide any technical information and/or data that you used.
        • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        • Provide specific examples to illustrate your concerns, and suggest alternatives.
        • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

        • To ensure that your comments are considered by the agency, make sure to submit them by the comment period deadline identified in the DATES section above.

        For additional guidance on submitting effective comments, visit: https://www.regulations.gov/docs/Tips_For_Submitting_Effective_Comments.pdf.

        How can I be sure that my comments were received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How do I submit confidential business information?

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit a copy, from which you have deleted the claimed confidential business information, to the docket at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512)
        Will the agency consider late comments?

        We will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that the docket receives after that date. If the docket receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.
        How can I read the comments submitted by other people?

        You may read the comments received by the docket at the address given above under ADDRESSES. The hours of the docket are indicated above in the same location. You may also see the comments on the internet. To read the comments on the internet, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.

        Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. You can arrange with the docket to be notified when others file comments in the docket. See www.regulations.gov for more information.

          List of Subjects in 49 CFR Part 571
          Imports, Motor vehicles, Motor vehicle safety.

        In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:

          PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

        1. The authority citation for part 571 continues to read as follows:

          Authority:
          49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95 and 501.8.

        2. Amend § 571.305 by:
        a. Adding, in alphabetical order, a definition for “High voltage live part” to paragraph S4;
        b. Revising paragraph S5.4.1.5;
        c. Revising the introductory text of paragraph S8; and
        d. Revising paragraph S9.2(a).
        The addition and revisions read as follows:

          § 571.305
          Standard No. 305; Electric-powered vehicles; electrolyte spillage and electrical shock protection.

          S4. Definitions.

            High voltage live part means a live part of a high voltage source.

          S5.4.1.5 Connectors. All connectors shall provide direct contact protection by:
          (a) Meeting the requirements specified in S5.4.1.4 when the connector is connected to its corresponding mating component; and,
          (b) If a connector can be separated from its mating component without the use of a tool, meeting at least one of the following conditions (1), (2), or (3):
          (1) The connector meets the requirements of S5.4.1.4 when separated from its mating component;
          (2) The voltage of the live parts becomes less than or equal to 60 VDC or 30 VAC within one second after the connector is separated from its mating component; or,
          (3) The connector requires at least two distinct actions to separate from its mating component and there are other components that must be removed in order to separate the connector from its mating component and these other components cannot be removed without the use of tools.

          S8. Test procedure for on-board electrical isolation monitoring system. Prior to any impact test, the requirements of S5.4.4 for the on-board electrical isolation monitoring system shall be tested using the following procedure.

          S9.2 * * *

          (a) Test method using a resistance tester. The resistance tester is connected to the measuring points (the electrical chassis and any exposed conductive part of electrical protection barriers or any two simultaneously reachable exposed conductive parts of electrical protection barriers that are less than 2.5 meters from each other), and the resistance is measured using a resistance tester that can supply current levels of at least 0.2 Amperes with a resolution of 0.01 ohms or less. The resistance between two exposed conductive parts of electrical protection barriers that are less than 2.5 meters from each other may be calculated using the separately measured resistances of the relevant parts of the electric path.

          Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.8.
          Raymond R. Posten,
          Associate Administrator for Rulemaking.

      [FR Doc. 2019-03181 Filed 2-27-19; 8:45 am]
       BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-AU20
        Fisheries of the Exclusive Economic Zone Off Alaska; Revised Management Authority for Dark Rockfish in the Bering Sea and Aleutian Islands Management Area and the Gulf of Alaska

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

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

          SUMMARY:

          The North Pacific Fishery Management Council has submitted Amendment 73 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 77 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (collectively, Amendments 73/77) for Secretarial (Commerce) approval. If approved, Amendments 73/77 would remove dark rockfish (Sebastes ciliatus) from both fishery management plans (FMPs). Consequently, the State of Alaska would then assume management of dark rockfish in the Bering Sea and Aleutian Islands Management Area and the Gulf of Alaska. This action is necessary to allow the State of Alaska to implement more responsive, regionally based management of dark rockfish than is currently possible under the FMPs. This action would improve conservation and management of dark rockfish and is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMPs, and other applicable laws.

          DATES:
          Comments on the proposed amendments must be received on or before November 17, 2008.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-AU20 by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
          • Mail: P. O. Box 21668, Juneau, AK 99802.
          • Fax: (907) 586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

          All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (e.g., name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.

          Copies of Amendments 73/77 and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action are available from the Alaska Region NMFS at the address above or from the Alaska Region NMFS website at http://alaskafisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Jennifer Hogan, 907-586-7228.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each Regional Fishery Management Council submit any fishery management plan (FMP) amendment it prepares to the Secretary for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register that the amendment is available for public review and comment. This action constitutes such notice for Amendments 73/77 to the FMPs.

        Amendments 73/77 were unanimously adopted by the North Pacific Fishery Management Council (Council) in April 2007. If approved by the Secretary, these amendments would remove dark rockfish (Sebastes ciliatus) from the FMPs and would thereby allow the State of Alaska (State) to extend its management authority for dark rockfish into Federal waters off the State.
        The Council recommended Amendments 73/77 because dark rockfish are a nearshore, shallow-water species which are rarely caught in offshore Federal waters. Dark rockfish currently are contained in the pelagic shelf rockfish (PSR) complex in the Gulf of Alaska. The overfishing limit and acceptable biological catch limit for PSR are based primarily on the stock assessment for dusky rockfish. Dusky rockfish comprise the majority of the total exploitable biomass estimate for the PSR complex. In the Bering Sea and Aleutian Islands management area, dark rockfish are contained within the “other rockfish” complex, the biomass of which is largely comprised of dusky rockfish and thornyhead rockfish. Under Amendments 73/77, the State could implement more responsive, regionally based management of dark rockfish than is possible under the FMPs. State management would reduce the possibility of overexploitation and localized depletion of dark rockfish that could occur if it is continued to be managed within the larger PSR and “other rockfish” complexes under the FMPs.

        NMFS is soliciting public comments on Amendments 73/77 through November 17, 2008. A proposed rule that would implement Amendments 73/77 will be published in the Federal Register for public comment at a later date, following NMFS' evaluation under the Magnuson-Stevens Act procedures.
        Comments received by November 17, 2008, whether specifically directed to the amendments or the proposed rule will be considered in the approval/disapproval decision on Amendments 73/77. Comments received after that date will not be considered in the FMP amendment approval/disapproval decision. All comments received on Amendments 73/77 or on the proposed rule during their respective comment periods will be addressed in the final rule.

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

          Dated: September 11, 2008.
          James P. Burgess
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E8-21745 Filed 9-16-08; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 622
        [I.D. 021306C]
        RIN 0648-AS70
        Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Limited Access Program for Gulf Charter Vessels and Headboats

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

          ACTION:
          Announcement of availability of fishery management plan amendments; request for comments.

          SUMMARY:
          NMFS announces the availability of Amendment 17 to the Fishery Management Plan for the Coastal Migratory Pelagic (CMP) Resources of the Gulf of Mexico and South Atlantic (Amendment 17) and Amendment 25 to the Fishery Management Plan for the Reef Fish Resource of the Gulf of Mexico (Amendment 25), prepared by the Gulf of Mexico Fishery Management Council (Council). Amendments 17 and 25 would establish a limited access system for the Gulf of Mexico charter vessel/headboat (for-hire) permits for the reef fish and CMP fisheries in the exclusive economic zone of the Gulf of Mexico and would continue to cap participation at current levels. The intended effect of Amendments 17 and 25 is to support the Council's efforts to achieve optimum yield in the fishery and provide social and economic benefits associated with maintaining stability in these for-hire fisheries.

          DATES:
          Written comments must be received no later than 5 p.m., eastern time, on April 24, 2006.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • E-mail: 0648-AS70.NOA@noaa.gov. Include in the subject line the following document identifier: 0648-AS70-NOA.
          • Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Mail: Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
          • Fax: 727-824-5308, Attention: Jason Rueter.

          Copies of Amendments 25 and 17, which include a Supplemental Environmental Impact Statement, a Regulatory Impact Review, and an Initial Regulatory Flexibility Analysis, are available from the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; e-mail: gulfcouncil@gulfcouncil.org.

          FOR FURTHER INFORMATION CONTACT:
          Jason Rueter, 727-824-5305; fax 727-824-5308; e-mail: jason.rueter@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Charter vessel permits were initially required in the CMP fishery in 1987 and the reef fish fishery in 1997. A joint amendment establishing the charter vessel/headboat permit moratorium for the CMP fishery (Amendment 14) and the reef fish fishery (Amendment 20) was approved by NMFS on May 6, 2003, and implemented on June 16, 2003 (68 FR 26280). The intended effect of these amendments was to cap the number of for-hire vessels operating in these two fisheries at the current level (as of March 29, 2001) while the Council evaluated whether limited access programs were needed to constrain effort. The moratorium is set to expire on June 16, 2006. These amendments, if implemented would establish a limited access program.

        A proposed rule that would implement the measures outlined in Amendments 17 and 25 has been received from the Council. In accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is evaluating the proposed rule to determine whether it is consistent with the FMPs, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the Federal Register for public review and comment.
        Comments received by April 24, 2006, whether specifically directed to the Amendments 17 and 25 or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendments. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendments or the proposed rule during their respective comment periods will be addressed in the final rule.

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

          Dated: February 14, 2006.
          James P. Burgess,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E6-2403 Filed 2-17-06; 8:45 am]
      BILLING CODE 3510-22-S